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AMERICAN LAW
A TREATISE
ON THE
||||\|\|, |\\|||||||\ \||||WS
OF THE
TJNITED STATES
By
JAMES DEWITT ANDREWS
EDITOR of “WILSON's WoRKs,” “ANDREws' STEPHEN's PLEADING,”
“CooDEY's BLACKSTONE" (fourth edition), E.To.
An institute ought to have two properties: the one a perspicuous and clear
order or method : and the other, a wrviversal latitude or comprehension, that
the students may have a little pre-notion of everything, like a model towards
a great building.—BACON.
CHIC A. G. O
CALL AG HAN AND COMPANY
1900
COPYRIGHT, 1900,
BY
CALLAGHAN AND COMPANY.
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STATE JOURNAL PRINTING COMPANY.,
PRINTERS AND STEREOTYPERS, &
MADISON, WIS.
TO
PETER STENGER GROSSCUP
In testmony of the
AUTIOR's ESTEEM FOR HIM As A JURIST, A PUBLICIST,
AND A MAN.
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PREFACE.
“It is of much importance in practice that the whole law be digested
in order, into divisions and titles to which every one may recur suddenly
as occasion shall be given, as a storehouse furnished for present use.” –
BACON.
An elementary treatise on law must be written with one
idea always present, namely, that it shall exhibit the origin
and growth of the fundamental principles of the subject and
of the corpus juris itself with such clearness and simplicity
that it may be comprehended by one not previously instructed
to any degree in that branch of learning. An elementary
treatise must also possess two other features, namely, a plain
method, which is essential to a clear view of the whole and
the relation of the parts, and a comprehensive scope.
Such a work may, without in any manner detracting from
its elementary character, possess additional qualities. It is not
merely how far the treatment is carried which determines the
character of the book, but where the treatment begins. If
the author always presents the rudiments and collects the ele-
mentary principles with the reasons for them, the treatise is
elementary. If he stops with these, it is merely elementary.
If he carries the treatment further and explains the subjects
more fully, it is none the less elementary, but it becomes
thereby just so far the more practical as the treatment is com-
plete and exhaustive. - -
Measured by a close standard, I think it may be safely af. *
firmed that we have had heretofore no elementary treatise on
American law. Perhaps the reason is that the study of juris-
prudence, properly so called, though well begun in the forma-
B -
vi PREFACE.
tive days of the republic, was neglected near the beginning
of the century, and not revived until after the late Civil War.
Perhaps also the developing and unsettled condition of our
law, state and national, prevented a thorough, comprehensive
treatment of our corpus juris as a complete, homogeneous sys-
tem, definite in its objects, symmetrical in its framework, and
harmonious in its operation. I am inclined to this view of the
matter, and after the most careful study of the treatises which
one might term elementary, it is my belief that the respective
authors do not attempt the preparation of an institutional ele-
mentary treatise or commentary. Indeed, Professor Walker,
whose work most closely approximates such a treatise, seems
studiously careful to negative such an impression. He says:
“Our great desideratum is a work which would be (to us pre-
cisely what the work of Blackstone is to England) an accurate
outline of American law.” <- -
Such an outline must precede a logical arrangement of the
laws of the Union or of a single state. It is an observation
which will apply equally to all logical sciences, that they do
not become sciences until analysis is introduced. There have
been works published under the title of Analysis of American.
Law, but it is not going too far to assert of them that they have
not so much applied the principles of analysis used by Gaius,
IIale, and Blackstone, as that they have adopted the form of
arrangement of the law of England, as presented by the latter.
My investigations in that direction have failed to discover
in any institutional work designed for the use of American
students, a declaration and application of the true principles
of legal analysis. To this observation there is one notable ex-
ception, but that is found in the writings of James Wilson,
which for many years passed unnoticed except by a few schol-
ars of this and other lands. The plan he proposed is that of
the civilians, and the results worked out agree singularly with
those of John Austin. -
PREFACE. vii.
The true principle is to divide the body of rules which con-
stitutes the corpus juris into classes of rules relating to some *
great subject, and to subdivide these into genus and species,
as explained in chapter 2, page 65 et seq., a careful examina- -
tion of which is made the subject of chapter 3. Legal analy-
sis, as there explained (page 79 et seq.), applied to the actual
preparation of a discourse or an elementary treatise on law,
combines two processes—analysis and synthesis.
Legal analysis in the United States has attained only to the
first process of analysis. That it has made so little progress is
not due to the lack of acumen or learning on the part of the
legal profession, nor of a lack of that peculiar ability usually
termed analytical, for it is safe to assert that this quality has
been exhibited in the utterances of Hamilton and Judge Wil-
son, Webster and Chief Justice Marshall, in the very highest
degree, though not strikingly prominent in the writings Of
Story or Kent. Nor is the reason to be found in the com-
plexity of our dual system of state and national jurisdiction,
though doubtless that adds to the difficulty of the work. The
reason lies deeper, and may be said to result principally from
two causes, the first a natural one, the second an artificial one.
As definition cannot precede a settled form and clear con-
ception of the subject to be defined, so a logical arrange.
ment of a nation’s laws cannot precede a settled and well
understood development of it. The first century of our na-
tional existence was a century of growth and development.
The relation of the states to the national whole was not settled
by the decisions of Chisholm v. Georgia, Cohen v. Virginia, or
intermediate cases, nor until after the reconstruction period.
The principles upon which the federal and state jurisdictions
were based, as understood and announced in the Federal Con-
vention, are not hard to grasp, but their application in the es:
tablishment of a fixed line of demarkation between state and
viii PREFACE.
federal jurisdiction has been a matter of slow and gradual
& growth, and often has received reluctant acknowledgment.
The nation has but recently attained its growth and taken on
the settled development of maturity. Its development will
continue, but its form is fixed.
That which may be termed an artificial cause for the lack
of method in our treatises is not that our system of laws is
any the less subject to arrangement than the laws of Rome
or England, though doubtless our system is more complex
than either. The principles upon which the system of gov-
ernment is founded render it more simple than at first glance
One would suppose. The real reason lies deeper, and may be
ascribed very largely to the habits of thought engendered by
the universal use of Blackstone's Commentaries as an institu-
tional work for students. This not because of any demerits
of the Commentaries as an analytical outline, presenting a
methodical synopsis of the English law, nor that it is not
adapted as an institutional work for students. By the use of
the Commentaries as a first book, the minds of students have #&
been filled with ideas and principles-not at all adapted to, and
indeed in direct conflict with, the fundamental principles of
American law; as there has been no corrective, these impres-
sions cling to them after they have become lawyers. Burke
says, “Studies become habits of thought.” !
The second process in legal analysis, which has been termed
the synthetical, consists in arranging the elements of the law
in logical order under heads and sub-heads, not alphabetic-
ally, but according to the natural relation of subjects. Thus
each head or title exhibits a progressive exposition of the sub-
ject, each division and subdivision follows another in mat-
ural order until the subject is exhausted. In this manner a
result is attained such as we see in Hale's or Blackstone’s
analysis of the English law, which may more properly be called
, PREFACE. ix.
a synopsis or visible outline of the law. Blackstone, who fol-
lows Hale very closely, says that his method was to mark out
a plan of the law of England so comprehensive that every
title might be reduced under some or other of its general heads.
There are certain subjects in our law which have been taken
bodily, in form and substance, from the English law. As to
these, very naturally the outline and arrangement found in the
Commentaries of Blackstone may properly be adopted; but it
seems quite obvious that we only perplex ourselves by attempt-
ing to arrange our whole body of law upon an outline pre-
pared for a system essentially different from our own; and he
who supposes that the American system of jurisprudence in
principle or form is based upon the English system as eaſplained
by Blackstone, has not examined deeply into the underlying
principles of each. - . -
The accompanying treatise on the jurisprudence, consti-
tution, and laws of the United States is constructed in ac-
cordance with the institutional or analytical method, with the
object of producing an elementary treatise possessing as much
of the practical as is possible within the space devoted to the
work. To that end the origin and growth of principles are
presented, and the treatment is followed up to show the pres-
ent state of the law, and is fortified by citations selected with
special reference to their historical value to the student and
practical value to the jurist.
The selection of the citations is governed so far as possible
by the following method: Fundamental principles are gener-
erally first promulgated by the judiciary, and are always so
expounded.
A leading case is one where a principle is first applied, or
a rule first promulgated, or a case where such are finally estab-
lished.
A ruling case is one settling a rule in accordance with or in
opposition to former decisions.
X PREFACE.
My practice is to cite the leading and ruling cases, and in
addition the best considered and most prominent late case or
cases applying the principles involved, giving preference to
such cases as are re-reported and annotated in standard reports,
such as Smith's Leading Cases, The American Reports, Ameri-
can Decisions, American State Reports, The Lawyers' Reports
Annotated, etc. In this manner access is given to a volume of
law far in excess of that given where no method governs the
citation. I believe that this citation does not detract from the
usefulness of the book to the student of law or to the political
scientist, and adds greatly to its value to the practical lawyer.
As to the treatment of the subjects of Things Real, or real
property, and the Law of Actions, or procedure, perhaps a word
of explanation is due, because of the brevity thereof. The sub-
jects are of so complicated a character that it is really easier
to treat them at length than to summarize them accurately.
|Brief treatment is more sure to show any imperfections on
the surface. It is my belief that the introductions to these
subjects, with outlines, will prove more useful to the beginner
than would a more elaborate treatise. The American law of
real property has never been presented with the proper ele-
mentary expositions; nor has it ever been so clearly presented
as to enable the student to grasp the most important distinc-
tions between the character and dignity of estates. The old
classification of freehold, and less than freehold, conveys no
idea based upon existing conditions as it did in its origin; and
while these terms are fastened to our law, another classifica-
tion bringing out the great practical differences between inter-
ests in land can be introduced, without in any manner ignoring
or disturbing the ancient treatment and classification. This I
have done; and if the classification is justified by the facts, our
law of real property appears in a natural and simple language,
easily comprehended by American readers of the twentieth
century. If this treatment is mastered, the detail of the sub-
IPREFACE. xi
ject may be easily acquired from any one of several works on
real estate.
The law of procedure treated in detail requires at least
two volumes, one for the equitable jurisdiction and procedure
of our courts, and another for legal actions; and it is my pres-
ent intention to publish such volumes as soon as possible here-
after. But I deem it extremely desirable that the law of pro-
cedure as constituting a part of one grand system of American
law, both national and state, be presented with the other parts
of the whole in such a manner as to show its relation to them.
The mere outline here given is brief, but it is clear; and
whoever masters it will find that the details of the law of pro-
cedure, local and general, may be acquired and comprehended
without difficulty.
It is my belief that if the present attempt to present our
jurisprudence and laws in a simple and natural order is not
successful in meeting the approval of the profession, the failure
will be due not to an imperfect conception or design, but to
my misjudgments and shortcomings in the performance of the
work.
J. D. A.
‘CHICAGO, May 1, 1900.
TABLE OF CONTENTS.
CHAPTER I.
INTRODUCTION . © © G º * º º e tº tº 1–62.
DEVELOPMENT OF THE SCIENCE OF TAW AND GOVERNMENT.
First Period. Representative Government in Greece—Ancient
Idea of Sovereignty and Slavery.
Second Period. Roman Jurisprudence — Compact Theory of
Government — New View of Slavery — Science and System
in Private Law — Gaius and Justinian.
Third Period. Rise of Feudalism and the Roman Hierarchy—
Church and State — Allegiance and Sovereignty.
Fourth Period. English Feudalism—Struggle for Constitu-
tional Government—Revival of the Science of Taw —
Rise of the Science of Government — Legal Questions of
American Revolution.
PART I,
THE LAW OF PERSONS – STATUS.
CHAPTER II.
ANALYSIS OF AMERICAN LAW º C * > Q e * . 63–78
Jurisprudence defined—Its relation to law—Principles of analy-
sis explained.
CHAPTER III.
PRIMARY CLASSIFICATION OF SUBJECTS . gº © ge e . 79–97
Ancient classification—Municipal law defined — Primary clas-
sification.
CHAPTER IV.
PERSONAL RELATIONS —THINGS — ACTIONS . tº e gº . 98–128.
Status — Property — Procedure — Anatomy of the corpus
juris.
xiv. TABLE OF CONTENTS.
CHAPTER V.
Page.
RIGHTS, OBLIGATIONS AND REMEDIES . © o © © . 129–152
Civil liberty.
CHAPTER VI.
MAGISTRATE AND PEOPLE © e & tº o © © . 153–168
The relations of men in society —Nature of official power—
National and state governments.
CHAPTER VII.
THE PEOPLE . © e Q º & Q © © © . 169–193
As a corporate unit — Capacity—Sovereignty — Character of
official authority—Limit of power—Consent the basis of
government — Expatriation — State autonomy — Republi-
can form of government.
CHAPTER VIII.
THE PEOPLE OF THE STATES . tº © e Q © © . 194–204
Identity — Capacity — Authority—Fundamental principles of
this government.
N
CHAPTER IX.
THE E’UBLIC DOMAIN © © gº º © o e © ſº 205–239
From colonial union to a national entity—The acquisition of
the national domain — Constitutional questions involved—
Doctrine of inherent powers of the nation.
CHAPTER X.
THE SOURCES AND SYSTEMS OF LAW - ſº Q tº º . 240–257 v
The supreme law — The constitution and treaties — The Com-
mon law —Law merchant —Maritime law —Martial law —
Military law.
CHAPTER XI.
THE NATIONAL GOVERNMENT . tº e * © Q © . 258–271
Nature of constitution — Delegation of official power — Per-
Sonality of magistrates—Creation of magistrates — Nature
of magistracy.
CHAPTER XII.
PARTITION OF THE POWERS OF GOVERNMENT tº • • . 272–283
Legislative, executive and judicial departments—Separation
Into departments limits orbit of authority.
CHAPTER XIII.
UNITED STATES CONGRESS g e © © © o . 284–296
Origin and constitution of congress.
TABLE OF CONTENTS. XV
CHAPTER XIV.
Page.
POWERS OF CONGRESS . º • , e tº tº tº © . 297–314
Constitutional construction and interpretation — Express, im-
plied and inherent powers—Nature of national union.
CHAPTER XV.
THE NATIONAL REVENUE e © e g º tº o 315–338
Nature of power to tax — Who may be taxed — What may be
taxed — Imports, customs and excises—Tariff and internal
revenue — Direct and indirect tax — Income tax—Inherit-
ance tax — Tevy, assessment and collection of taxes.
CHAPTER XVI.
POWER TO REGULATE COMMERCE . “º º © te ſº . 339–371
Meaning of expression — Embargo distinguished — Interstate
commerce — Five phases of the question — Commerce and
police power — Freight pools — Traffic contracts — Inter-
state commerce commission.
CHAPTER XVII.
FINANCE AND CURRENCY {º * & e º wº e . 372–385
Power to borrow and coin money and punish counterfeiting—
National banking system — Legal tender notes — Coining
money and regulating the value of money and of foreign
coin — The standard of value.
*
CHAPTER XVIII.
BANKRUPTCY AND INSOLVENCY C wº o * > - © 386–398
No express power to allow voluntary bankruptcy — Power of
the states— Bankruptcy law of 1898.
CHAIPTER XIX.
WAR AND MILITARY POWER . ge tº * > gº o e . 399–412
The army, navy and militia—State and national authority
over militia — Military law of the militia — Courts-martial.
CHAPTER XX.
POSTOFFICE POST ROADS—INTERNAL IMPROVEMENTS . * > . 413–424
The authority to make internal improvements—National and
state grants to railroad corporations — Justification of Such
donations.
CHAPTER XXI.
FEDERAL EXECUTIVE e § tº & e e © º . 425—434
Eligibility — Election — Powers—The cabinet.
xvi. TA BLE OF CONTENTS.
CHAPTER XXII.
Page.
STATE LEGISLATIVE DEPARTMENT . º “º * > e © . 435–476
TJnity and interdependence of state and nation — Inherent
limitations on state legislative power—Constitutional lim-
itations — Police power — State taxing power — Eminent
domain.
CHAPTER XXIII. *
STATE EXECUTIVE . tº tº * > e gº º sº e . 477–485
Governor—Powers and duty — Secretary of state — Attorney-
general — Subordinate officers.
CHAPTER XXIV.
LOCAL SELF-GovKRNMENT—PUBLIC CORPORATIONs . . º . 486–534
Definition and classification of corporations—Township organ-
ization — County organization — Constitutional right of
local self-government — Powers and liability — Public or
Common Schools.
CHAPTER XXV.
LOCAL SELF-GOVERNMENT — MUNICIPAL CORPORATIONS . * . 535–561
Organization, control and dissolution of cities—Tocal govern-
ment in cities a right — Police and taxing powers—Lia-
bilities and exemptions from liability—Ultra vires con-
tracts.
CHAPTER XXVI. ^
PRIVATE CORPORATIONS . o tº © o © © tº . 562–597
Form — Organization — Powers — Articles of association —
Charter–Stock and stockholders —Liability on contracts
and for torts—Ultra vires — Dissolution of corporations.
CHAPTER XXVII.
PERSONAL RIGHTS . & ºt. tº { } • * © e Q . 598–630
Classes of men — Natives — Aliens — Denizens — Citizens —
Sex – Race — Color—Liberty—Security — Equality – Re-
cent developments — Post bellwin amendments — Sex, race
and color discriminations.
CHAPTER XXVIII.
DOMESTIC RELATIONS * g & dº e º g © . 631–688
Husband and wife — Marriage, divorce and annulment — Par-
ent and child —Teacher and pupil — The state as paren's
patrice — Guardian and ward — Apprentices.
TABLE OF CONTENTS. xvii
PART II.
THE LAW OF THINGS.
CHAPTER XXIX.
Page.
THINGS (OR PROPERTY) . tº - gº º o gº . 689–952
Things and property distinguished— Classes of things — Prop-
erty — Several kinds of property — Modes of acquisition —
CONTRACTs, including the function of contracts; PARTIES;
ASSENT of the parties; CONSIDERATION; The character and
relation of stipulations; Entire contracts; Apportionability
Of contracts; THE SUBJECT-MATTER; FORM of contracts;
The statute of frauds; The obligation of a contract; Disso-
lution; Privity, assignability and negotiability; Agency;
Partnership; Master and servant; Sales of chattels; Mort-
gage of chattels; Bailments; Innkeeper's duty to guest;
Carriers of passengers; Insurance; Guaranty and surety;
Negotiable instruments; Banker and customer.
CHAPTER XXX.
THINGS REAL © º º g e g tº gº . 955–1022
Land and fixtures — Incorporeal interests — Ownership versus
tenure — Estates — Titles – Conveyancing.
|PART III.
THE LAW OF ACTIONS.
CHAPTER XXXI.
LAW OF ACTIONS sº - g º * ... tº © * ... 1025–1145
Judicial departments of states and nation — Courts and juris-
dictions—Elements of causes—Forms of action—Legal and
equitable actions— Code procedure—Parties–Pleading—
Practice — Evidence — Appellate procedure.
PART IV.
THE LAW OF CRIMES.
CHAPTER XXXII.
CRIMES AND CRIMINAL PROCEDURE . e tº iº º , 1149–1151
The nature of crimes—Theory of public punishment — The
principles of procedure – Criminal pleading—Evidence
and practice.
APPENDIX e e º g º e gº e * * . 1153–1160
*
TABLE OF CASES.
References are to pages.
A.
Aaron's Reefs v. Twiss, 724.
Abbott v. Bosworth, 989.
Abbott v. Draper, 742.
Abend v. T. H. & T. Ry. Co., 856.
Abº v. Milwaukee, etc. Ry. Co.,
02.
Abt v. Am, Tr. & S. Bank, 950.
Academy v. Harvard College, 507,
533, 567, 998.
Ackley v. Finch, 880, 884,
Aeº. N. C. C. Ry. Co., 801, 803,
1104. ,
Acquackanonk Water Co. v. Wat-
son, 695.
Adams v. Beall, 712.
Adams v. Breman, 620, 778.
Adams v. Fitzpatrick, 844.
Adams v. Hayes, 925.
Adams v. King, 936.
Adams v. Tindsell, 718, 719.
Adams v. Robertson, 721.
Adams v. Roscoe Lumber Co., 872.
Adams Express Co. v. Ohio, 465.
Adamski v. Wieczorek, 1080.
Adsit v. Adsit, 1021.
Adsit v. Brady, 528.
AEtna Power Co. v. Hildebrand, 1060.
Agnew v. Bell, 925.
Ah Kow v. Nunan, 621.
Ahrenfeldt v. Ahrenfeldt. 676.
Aiken v. Blaisdell, 765, 766.
Aiken, Matter of, 1031.
Akin v. Lloyd, 1082.
Alabama G. S. R. Co. v. Mt. Vernon
Co., 869.
Albrecht v. Railroad Co., 724.
Alderson v. Ennor, 796.
Alderson v. Maddison, 743.
Aldrich v. Ames, 921.
Aldrich v. Boston, etc. R. Co., 895.
Alexander v. Donahoe, 1118.
Alexander v. Jones, 804,
Alexander v. Pendleton, 1083.
Alger v. Thacher, 776.
Allaire v. Whitney, 742.
Allegiance Cases, 28.
Allen v. Addington, 722.
Allen v. Berryhill, 715.
Allen v. City of Decatur, 557.
Allen v. Cowan, 668.
Allen v. Ferguson, 86.
Alleg v. Galveston, H. & S. R. R. Co.,
49. zº
Allen v. Ham, 894.
Allen v. Hammond, 862.
Allen v. Harrah, 947.
Allen v. Irwin, 797.
Allen v. Jackson, 999.
Allen v. Leavens, 943.
Allen v. South Boston R. Co., 797.
Allen v. Williams, 890.
Allen v. Withrow, 831.
Allen v. Woodward, 797.
Allenborough v. St. Catherine's Dock
Co., 895.
Allerton v. Chicago City Ry, Co.,
573, 574, 575, 578.
Allison v. Drake, 1130.
Allore v. Jewell, 727.
Alt v. Lohnas, 740.
Alvord v. Davenport, 891, 907.
Alvord v. Smith, 780.
American Ass’n v. East Ky. L. Co.,
1087.
American Brewing Ass’n v. Talbot,
S95.
American Dist. Tel. Co. v. Leming,
923
fº/
American Ins. Co. v. Bales of Cotton,
American Ins. Co. v. Canter, 230, 231.
305, 306.
American & Ocean Ins. Co. v. Bales
of Cotton, 222.
American M. & G. Co. v. Buckley,
578, 596.
American Surety Co. v. Pauly, 924.
American Trust Co. v. Boone, 715.
Ames v. Port Huron, 281.
Ammerman v. Niles, 560.
Anderson v. Bosworth, 1031.
Anderson v. Jett, 778.
Anderson v. Kissam, 784.
Anderson v. Soward, 712.
Anderson v. Spence, 923.
Andrews v. Andrews, 973.
Andrews v. Congar, 806.
Andrews v. Deiterich, 864.
YX.
TABLE OF CASES.
References are to pages.
Andrews v. Kibbie, 1122.
Andrews v. Spence, 921.
Andrews, In re, 687.
Androscoggin R. Co.
Bank, 891.
Angell v. McClellan, 674.
Angelo v. Angelo, 1109.
Anstell v. Humphries, 737.
Anthony v. State, 1150.
Antoni v. Belknap, 964.
Appleton v. Ames, 990.
Appollon, The, 368.
Archir v. James, 459.
Argenti v. City of San Francisco,
559.
Ark. L. R. Gas Co. v. Shall, 1064.
Armfield v. Tate, 774.
Armitage v. Widoe, 806.
Armory v. Delamirie, 889.
Armory v. Flyn, 695.
Arms Co. v. Railway Co., 1060, 1063,
1064, 1065.
Armstrong v. National Bank, 936.
Armstrong v. Smith, 814.
Armstrong v. Stokes, 815.
Armstrong v. Toler, 766.
Armstrong’s Case, 421.
Armstrong’s Estate, 986.
Arndt v. Griggs, 1037.
Arnett v. Welch, 1119.
Arnfield v. Nash, 859.
Arnold v. Dresser, 947.
Arnold v. Ill. Cent. R. R. Co., 903.
Arnold v. Munday, 702.
Arnold v. Shields, 1094.
Arnold v. Wainwright, 1005.
Arthur v. Broadnax, 665.
Arthur v. Oakes, 361.
Arthur v. School District, 1087.
Ash v. Cumming, 470.
Ash v. Savage, 882.
Ashby v. White, 264, 528, 607, 967,
1036, 1037.
Asher v. Texas, 345.
Askew v. Hale, 517.
Aspinwall v. Sacchi, 925.
Association v. Thompson, 1080.
Association Co. v. Boogher, 1086.
Atchison, T. & S. F. Ry. Co. v. Plun-
ket, 849.
Atkins v. Saxton, 834.
Atkinson v. Baker, 979.
Atkinson v. Goodrich Transp. Co.,
459.
Adºº etc. R. Co. v. Tex. Grate Co.,
905 º:
v. Auburn
Atlantic Nat, Bank v. Harris, 1104.
Attorney-General v. Blossom, 440,
1094.
Attorney-General v. Brown, 482.
Attorney-General v. Jamaica Pond
Aqueduct, 1091.
Attorney-General v. Jochim, 553.
Attorney-General v. Utica Ins. Co.,
1044, 1091.
Attorney-General v. Wheeden &
Shales, 603.
Atwater v. Butler, 983.
Atwater v. Fowler, 1075,
Atwood v. Atwood, 984.
Auburn v. U. W. Co., 1019.
Augusta Nat. Bank v. Cunningham,
783. -
Aultman Co. v. Goldsmith, 1061.
Aurora v. Dale, 553. ,
Austin v. Bruner, 1077.
Aus; v. Seligman, 796, 797, 798,861,
84. *
Auten v. Crahan, 951.
Averill v. Hodge, 719.
Averill v. Taylor, 977.
Avery v. Scott, 773.
Aymar v. Roff, 139, 651, 1036, 1066.
Aymer v. Sheldon, 938.
B.
Babbitt v. Day, 1004.
Babcock v. Chase, 799.
Babcock v. Wandish, 839.
Babcock’s Ex’r v. Allegheny Coal
Co., 584.
Backus v. Chapman, 986.
Backus v. Start, 895.
Badger v. Badger, 1070.
Badger v. Phinney, 710.
Bagg’s Case, 537.
Bagley v. Columbus So. R. Co., 980.
Bagley v. Smith, 840.
Bahn V. Bahn, 657.
Bailey v. Dozier, 945.
Bailey v. Glover, 1070.
Bailey v. Mayor. 556.
Bailey v. New York, 551.
Bailey v. P. W. & B. R. R. Co., 439,
471, 473, 474.
Bailey v. Railroad Co., 729.
Baird v. Pettitt, 857.
Baird v. Supervisors, 441, 520.
Baker v. Bradley, 730.
Baker v. Morton, 726.
Baker v. People, 660.
Baker v. Selden, 698.
Baldwin v. Bank, 817.
Baldwin v. Burrows, 828.
Baldwin v. Doubleday, 869.
Baldwin v. Leonard, 814.
Baldwin v. Owens, 881.
Eall v. Herbert, 468.
B. & O. Ry. Co. v. Baugh, 250, 251,
54.
B., O. & C. Ry. Co. v. I. C. Ry. Co.,
738, 790.
Banbury Peerage Case, 672.
Banet v. Alton & S. Ry. Co., 576.
TAIBILE OF CA. SES.
xxi
References are to pages.
Bang v. Phelps, 1121.
Bangs v. Dunn, 771.
Bank v. Anderson, 1003,
Bank v. Deveaux, 583.
Bank v. Earle, 499, 583.
Bank v. Forster, 1069.
Bank v. Hammel, 1084.
Bank v. Hughes, 944.
Bank v. McLeod, 623.
Bank v. Matthews, 560.
Bank v. N. Y. & L. E. & W. Ry. Co.,
802.
Bank v. N. Y. & N. H. R. R. Co., 934.
Bank v. Smith, 947.
Bank v. Waterman, 528, 1037.
Bank Of Batavia, V. N. Y. etc. R. R.
Co., 936, 937.
Bank of Col. v. Hagner, 753.
Bank of Columbia v. O'Kely, 283.
Bank of Marysville v. Brewing Co.,
951.
Bank of Mich. v. Ely, 943.
Bank of N. O. v. Mathews, 841.
Bank of Ohio v. Torrey, 812.
Bank of Red Oak v. Orvis, 947.
Bank of Springfield v. First Nat.
Bank, 952.
Bank of Uniontown v. Mackey, 920.
Bank of U. S. v. Halsted, 447.
Bank of U. S. v. Owens, 764,
Bank of U. S. v. Planters’ Bank, 597.
Bank of U. S. v. Smedes, 476.
Bank of W. v. Triplett, 731.
Banks v. Manchester, 1123.
Eanks v. McDivitt, 697.
Baptist Ass’n v. Hart, 998.
Barber v. Bold, 987.
Barber V. Root, 663.
Barbers v. Larnes, 912.
Barbier v. Connolly, 457.
Barbour v. Nelson, 337.
Harker v. Bradley, 729.
Barker v. Dayton, 988,
Barkley v. Wilcox, 993.
Barling v. West, 458.
Barnard v. Backhaus, 766.
JBarnes v. Barrow, 709.
Barnes v. Carnack, 1078.
Barnes v. Scott, 769.
Barnett v. Fergus, 882.
Barney v. Keokuk, 233.
Barr v. Gibson, 862.
Barr v. Village of Auburn, 551.
Barrell v. Handrick, 999, 1000.
Barrere v. Barrere, 656, 658,
Barrett v. Brooks, 543.
Barrett v. Frailing, 659, 662, 663, 985.
Barrett v. Hinckley, 1077.
Barrett v. Pritchard, 872.
Barrie v. Smith, 1002.
Barron v. Burnside, 581.
Barron v. Eldridge, 900.
C
Barry v. Abbott, 1123, 1124.
Barry v. Law, 741.
Barry, In re, 1099.
Bartemeyer v. Iowa, 457, 459.
Bartholomew v. Jackson, 749. *.
Bartles v. Nunan, 1006.
Bartlett v. Crozier, 527.
Bartlett v. Hawley, 815
Barto v. Himrod, 447.
Barton v. Gray, 738.
Bass v. Peevey, 782.
Bass v. Tingey, 412. *
Bass Furnace Co. v. Glasscock, 759.
Bassett v. Atwater, 575, 1093, 1094.
Bassett v. Hughes, 795.
Bast v. Bast, 659.
Basten v. Carew, 411.
Bastian v. Modern Woodmen, 559,
570, 578, 579, 582, 588.
Bates v. Ball, 716.
Bates v. Skidmore, 1126.
Batley v. Fowderer, 1016.
Batterman v. Pierce, 729.
Batterson v. Barlow, 337.
Bauerle v. Long, 1120, 1121.
Baughman v. Penn, 865, 874.
Baum v. Parkhurst, 1014, 1139.
Baxter v. Newman, 831.
Bayles v. Kan, etc. Ry. Co., 905.
Beach v. Dyer, 999.
Beach v. Miller, 589, 590.
Beach v. Mullin, 759.
Beal v. Chase, 777.
Beal v. Fox, 1054,
Beaman v. Russell, 921.
Bean v. Edge, 868, 872.
Bear v. Heasley, 593.
Beard v. Knox, 983.
Beardsley v. Hotchkiss, 710.
Beaston v. Farmers’ Bank, 500.
Becker v. People, 545.
Becking's Appeal, 654,
Beckitt v. Midland Ry. Co., 470.
Beddoe’s Ex’r v. Wadsworth, 1010,
1015, 1016.
Bedell v. Janney, 814.
Bedsworth v. Bowman, 713.
Beebe v Bank of New York, 279,
1118, 1121.
Beecher v. Bush, 821. 835.
Beecher v. Crouse, 684.
Beedles v. Bliss, 780.
Beekman v. Railroad Co., 468.
Beeman v. Lawton, 883.
Beer Co. v. Massachusetts, 456.
Beeston v. Beeston, 764.
Begbie v. Levi, 943.
Beggs v. State, 611.
Beley v. Naphtaly, 431.
Belknap v. Schild, 1100.
Bell v. Singer S. M. Co., 1086.
Bell v. Thompson, 844.
xxii
TARILE OF CASES.
References are to pages.
Bellaire Goblet Co. v. City of Finley,
770.
Bellows v. Parson, 254.
Bellows v. Sowles, 739, 740.
Beloit v. Morgan, 1107.
IBelt v. Mehen, 720.
Benedict v. Schawettle, 876.
Benedict v. Smith, 804.
Bennecke v. Conn. Mut. Ins. Co., 804,
Benner v. Weeks, 796.
Bennett v. Bennett, 670.
Bennett v. Morse, 786.
Bennett v. Vade, 1119.
Benson v. Phipps, 920.
Benton v. Trustees, 502.
Berdolt v. Berdolt, 657.
Berea Stone Co. v. Krafts, 853, 854.
Bergºn v. St. Paul Mut. B. Ass'n,
576
Berkshire Co. v. Proctor, 897.
Berlin Mach. Works v. Security Tr.
Co., 882.
Berliner v. Travellers’ Ins. Co., 915.
Bernard v. Sampson, 729.
Berret v. Oliver, 276.
Berry, Geo. E., The, 894.
Berry v. Am. Cent. Ins. Co., 721.
Berry v. Sewall, 1004, 1010, 1011.
Berry v. Va., & Pittsb. R. R. Co., 903.
Bertine v. Varian, 1075.
Best v. Jenks, 984.
Betts v. Chicago, R. I. & Pac. Ry.
Co., 901.
13evans v. Went, 603.
Beveridge v. Rawson, 805.
Bevin v. Conn. Mut. Co., 911.
Beymer v. Bonsall, 814, 815.
Bible Society v. Price. 1100.
Bickford v. First Nat, Bank, 814.
Bierbower’s Appeal, 1053.
Bigº, v. Berkshire Life Ins. Co.,
16.
Bigelow v. Forrest, 454.
Bilderback v. Burlingame, 930, 936.
Billingsley v. Clelland, 747.
Billingsley v. White, 868.
Bingham v. Brands, 775, 776.
Bingham v. Miller, 656.
Bingham v. Salene, 993.
Binghamton Bridge, The, 84.
Binney’s Case, 1082.
Birds v. Railroads, 902, 905.
Bishop v. Am. Preservers Co., 778.
Bishop v. Breckles, 841.
Bishop v. Eaton, 920.
Bissell v. Foss, 563.
Bissell v. Hopkins, 882.
Bissell v. Lewis, 943.
Bissell v. Mich. So. Ry. Co., 559.
Bissell v. Pierce, 883, 894, 907.
Bixby v. Dunlap, 845.
Plaº A. W., St. L. & P. Ry. Co., 730,
Black v. Ward, 936.
Blackburn v. Crawford, 671.
Blacklawn v. Milne, 674.
Black River L. Co. v. Warren, 728.
Blackwell v. Broughton, 986.
Blackwood v. Brown, 802.
Blair v. Forehand, 696.
Blair v. Ridgely, 127, 170, 198, 454,
528, 607, 1036, 1037.
Blair v. Sennott, 1095.
Blake v. Ferris, 893.
Blake v. McClurg, 599, 607, 616, 618,
623, 624.
Blake v. McMillan, 948.
Blake, Moffett & Towne v. Francis
Valentine Co., 396.
Blanchard v. Baker, 695.
Blanchard v. D., L. & M. Ry. Co., 750,
751, 753, 755.
Blanchard v. Hill, 700.
Blanchard v. Illsley, 680.
Blanchard v. Kenton, 884.
Bianchard v. McDougal, 743.
Blank v. Dreher, 921.
Bleckley Co. v. Alewine, 935.
Bliss v. Com. & P. R. Co., 714.
Bliss v. Tawrence, 771.
Bliven v. N. E. Screw Co., 731.
Bliven v. Railway Co., 901.
Block v. Association, 917.
Blodgett v. Hildreth, 999.
Blomquist v. C. & St. P. R. Co., 854.
Bloom v. Richards, 461, 628.
Bloomfield v. Charter Oak Bank, 521,
525.
Blossom v. Griffin, 728, 898.
Plumenthal v. Michel, 868.
Blydenburgh v. Cotheal, 1016.
Board v. Allman, 522, 523, 524.
Board v. Auditors, 535, 546, 551.
Board v. Blocker, 515.
Board v. Smith, 1128.
Board of Education v. Bakewell, 507,
534, 567.
Board of Education v. Blodgett, 95,
126, 130, 392.
Board of Education v. Robinson, 797.
Board of Trustees v. Scheik, 920.
Boardman v. Thompson, 1031, 103?.
Bodine v. Arthur, 974, 1015.
Bodle v. Chenango Mut. Co., 911.
Bogert v. Indianapolis, 682.
Boh v. Irwin, 881
Bollman, Ex parte, 231.
Bolton v. Johns, 280.
Bonaparte v. Camden & A. R. R. Co.,
438, 473.
Bond v. Lockwood, 686.
Bond v. Penn Co., 1123.
Bond v. Terrell Mfg. Co., 560.
Bonham v. Badgley, 639, 983.
Bonn v. Hopkins, 1054.
Booge v. Pacific R. R. Co., 859.
TATBLE OF CASES.
xxiii
References are to pages.
Bool v. Mix, 711.
Boon v. Bowers, 254.
Boone v. Chiles, 1079, 1091.
Boone v. Eyre, 754,
Booth v. Farmers’ Bank, 1057.
Booth v. Wonderly, 581, 726.
Boothby v. Plaisted, 869.
Borden v. Croak, 881.
Borland's Lessees v. Marshall, 982.
Born v. Ind. etc. Bank, 952.
Borough of Milford v. Milford W.
Co., 770.
Börs v. Preston, 1097, 1099.
Boston v. B. & A. Ry. Co., 269.
Boston Blower Co. v. Brown, 717,
752, 754, 797, 817, 818.
Boston Diatite Co. v. Florence Mfg.
Co., 1086.
Boston Ice Co. v. Potter, 709. 749.
Boston M. Bank v. Boston State
Bank, 950.
Bouwmeester v. G., R. & Ry. Co., 909.
Bowdine v. Boston, 557.
Bowell v. De Wald, 897.
Bowen v. Byrne, 321.
Bowen v. Hall, 845.
Bowen v. Johnson, 1071.
Bowen v. Newell, 946, 950.
Bowker v. Hoyt, 759.
Bowline v. Crook, 1086.
Bowman v. Bowman, 663.
Bowman v. C. & N. W. Ry. Co., 350.
Bowman v. St. John, 551.
Boyd v. Hoyt, 1063, 1076, 1107.
Boyd v. Shorock, 964.
Boyd v. Thayer, 606.
Boyd v. State, 677.
Boyd v. United States, 621, 622.
Boynton v. Ball, 398. r
Boyse v. Rossburgh, 1084.
Boysen v. Thorn, 843, 846.
Braceville Coal Co. v. People, 579.
Bracken v. Kennedy, 1075.
Bracken v. Preston, 1081.
Bradbury v. Helms, 717.
Dradford v. Randall, 737.
Bradford v. State, 976.
Bradish v. Gibbs, 523, 744.
Bradlaugh v. Newdegate, 768.
Bradley v. Aldrich, 1058.
Bradley v. Ballard, 560.
Bradley v. Fisher, 528.
Bradley v. Marshall, 751.
Bradner v. Faulkner, 980.
Bradwell v. State of Illinois, 626,
Brady v. Finn, 725.
Dragelman v. Dana, 879.
Bragg v. Geddes, 1121.
Brainard v. Burton, 988.
Braley v. Powers, 722.
Brandeth v. Lance, 1186,
Brandish v. Bliss, 1144,
Brasher v. Christophe, 882.
Brauer v. Shaw, 719.
Braun v. Chicago, 459.
Braxon v. Bressler, 702.
Braynard v. Hoppock, 910.
Breckenridge v. Ormsby, 711, 715.
Breen v. Miehle P. P. & Mfg. Co., 811.
Breeswick v. City of Brunswick, 476.
Brenham v. Brenham Water Co.,
546, 559.
Brennan v. Titusville, 340, 345.
Brent v. Davis, 797.
Brewer v. Blougher, 674.
Brewer v. Dyer, 796.
Brewster v. Hammet, 833.
Brice v. Bauer, 696.
Brick Pres. Church v. City of N. Y.,
575,
Briggs v. Com. M. Ins. Co., 911.
Briggs v. Partridge, 738, 816.
Brinkerhoff v. Brown, 1051.
Brinkley v. Brinkley, 663.
Brinkman v. Hunter, 943.
Brinkmeyer v. Evansville, 549.
Briscoe v. Bank of Ky., 949.
Bristol v. Warner, 931.
Bristow v. Lane, 744.
Britton v. Ainger, 741.
Britton v. Turner, 756, 759, 761.
Broadway Bank v. Adams, 973.
Broad well v. Broadwell, 732.
Broad well v. Getman, 740.
Broder v. Zeno Mauvais Music Co.,
697. -
Broderick’s Will, 1084.
Brodeur v. Valley Falls Co., 857.
Brokaw v. Ogle, 988
Bronnenburg v. Charman, 889.
Bronson v. Kinzie, 91, 95, 132, 392,
394, 451, 789, 987.
Brook v. Brook, 637.
Brooks v. Barry, 812.
Brooks v. Martin, 766, 786.
Brooks v. Ruff, 880.
Brookshire v. Brookshire, 790.
Bross v. C. & V. R. R. Co., 730.
Brown v. Beatty, 474.
Brown v. Bragg, 990.
Brown v. Brown, 1069.
Brown v. C., M. & St. P. Ry. Co.,
1062. *
Brown v. Cowell, 813.
Brown v. Duncan, 766.
Brown v. First Nat. Bank (N.Y.), 525.
Brown v. First Nat. Bank (Ala.), 930.
Brown v. Guyandotte, 549.
Brown v. Hartford Fire Ins. Co., 806.
Brown v. Jones, 943.
Brown v. Judges, 1085.
Brown v. Kayser, 740.
Brown v. McGran, 898.
Brown v. Maryland, 344, 348, 350, 352.
xxiv.
TABLE OF CASES.
References are to pages.
Maxwell, 854,
Mortgage Co., 1123.
Oregon L. Co., 856.
Phillips, 626.
United States, 428.
Brown v. Walker, 366.
brown v. Wellington, 1005.
Brundage v. Camp, 863, 872.
Bruse v. Nelson, 1080.
Brush Electric Co.'s Appeal, 1054.
Bruss-Ritter Co., In re, 396, 397.
Bryan v. Bradley, 959.
Bryant v. United States, 1095.
Bryant Pond, etc. Co. v. Felt, 747.
Buchanan v. Ocean I. Co., 910.
Buck v. Adams, 1016.
Huckley v. Barber, 830, 831.
Bue; v. Stickney & Furniss, 876,
Bucklin v. Thompson, 882.
|Buckner v. Calcote, 725, 812, 1068,
Bugbee v. Kendricken, 739, 922.
Bulkeley v. Home, 918.
Bull v. Bank of Kasson, 936,
Bull v. Brockway, 797.
Bull v. Ky. Nat. Bank, 971.
Buller v. Crips, 929.
Bullinger v. Mackay, 698.
Burdett v. Abbott, 34.
Burgdorf v. District of Columbia,337.
Burgess v. Wheaton, 1054.
Burke v. McKay, 946.
Burke, Ex parte, 461.
Burnes, In re, 250, 665, 1095, 1098, 1099.
Burnett v. Crane, 992.
Burnham v. Kidwell, 715, 716.
Burns v. Beck, 578.
Burrows v. Alter, 1067.
Burtis v. Bradford, 884.
Burtis v. Burtis, 257, 656.
|Burton v. Curyea, 866.
Burton v. Goodspeed, 808.
Bushnell v. Kennedy, 1104,
Buster v. Newkirk, 696.
Butler v. Butler, 861, 875.
Butler v. Carns, 725,933.
Butler v. Ives, 867.
Butler v. Lawshe, 868.
Butler v. Manhattan Ry. Co., 1137.
Butler v. Maples, 809.
Butler v. Nichols, 933.
Butterfield v. Ashley, 679, 843.
Butterick v. Lowell, 557.
Buttz v. Penny, 32.
Buzzell v. Cumming, 964,
Byers v. McAuley, 1099.
Byington v. Simpson, 815, 816.
Tłyrd v. Boyd, 761.
Byrd v. Hughes, 764.
Byrne v. Schuyler Elev., 559, 572, 573,
574, 575, 576, 579, 580, 585, 594.
Byxbie v. Wood, 801.
Brown v.
Brown v.
Brown v.
Brown v.
Brown v.
J
C.
Cadogan v. Kennett, 874.
Cahn v. Mich. Cent. R. Co., 904.
Cahokia v. Rautenberg, 938.
Cairns v. Chabert, 979.
Cairns v. Fisher, 1128.
Calais V. Whidden, 797.
Calder v. Bull, 49.94, 126, 127, 143, 156,
245, 261, 276, 394, 454, 1028.
Calderscott v. Brown, 979,
Caldwell v. Ball, 937.
Caldwell v. Fulton, 962.
Caldwell v. Leiber, 837.
Caledonia, The, 900.
California v. Pacific Ry. Co., 465, 470,
497, 501, 566.
California v. So. Pac. Ry. Co., 1096,
1097, 1098, 1106.
California Bank v. Kennedy, 558.
Calkins v. Smith, 838.
Callanan v. Chapin, 741.
Callisher v. Bischoffsheim, 747.
Calvin v. Gleason, 1084.
Calvin’s Case, 99, 1026.
Calye's Case, 896, 897.
Cammack v. Lewis, 911.
Camp v. Byrne, 582.
Campbell v. Campbell, 634, 650, 652.
Campbell v. Cincinnati, 550.
Campbell v. Dearborn, 1002.
Campbell v. Hall, 317, 318, 325.
Campbell v. Holt, 95, 126.
Campbell v. Perkins, 710.
Campbell v. Race, 281.
Campbell v. Sherman, 919.
Campbell v. Stakes, 892.
Campbell v. Thomas, 741.
Campbell, Mary K., The, 894.
Canal Bridge Co. v. Meth. Soc., 1002.
Canal Com. v. People, 56.
Canning v. McMillan, 854.
Cannon v. White, 999, 1000, 1083.
Canterberry v. Miller, 708.
Capek v. Kropik, 986.
Capital Gas Co. v. Young, 770.
Capps v. Hickman, 685.
Carbine v. Morris, 1138.
Carey v. Dyer, 737.
Carey v. Hulett, 644, 652, 654.
Carley v. Jenkins, 806.
Carlisle v. Campbell, 740.
Carlisle v. United States, 431, 604.
Carpenter v. Allen, 964.
Carpenter v. Carpenter, 711.
Carpenter v. Garrett, 982.
Carpenter v. Graham, 867.
Carpenter v. Providence-Wash. Ins.
Co., 249.
Carpenter v. Railroad Co., 898.
Carpenter v. Stevens, 862.
e
| Carpenter v. U. S. etc. Ins. Co., 911.
TABLE OF CASES.
XXW.
References are to pages.
Carpenter v. Van Olinder, 1012,
Carr v. Dooley, 730.
Carrey v. Spencer, 628.
Carrier v. Sutherland, 986.
Carris v. Carris, 655.
Carroll v. Ballance, 1003.
Carson v. Ury, 848.
Carter v. Denman, 1015.
Carter v. Moses, 931.
Carter's Appeal, 1102.
Cartwright v. Cartwright, 769.
Cartwright v. McGown, 643, 644, 645,
646, 647, 648, 649, 651, 652, 655.
Case v. Allen, 894,
Case v. Beauregard, 1077.
Case v. Case, 1144.
Case v. Frog, 898. -
Casey v. Casey, 804.
Casey v. Hulett, 653.
Castle v. Bullard, 824, 839.
Castro v. Illies, 664.
Catlin Coal Co. v. Loyd, 1020.
Caulkins v. Hellman, 875.
Cecil v. Clark, 1005.
Central Bridge Corp. v. Abbott, 138.
Central, etc. R. Co. v. Kisch, 724.
cenº R. R. Co. v. Hasselkus, 901,
05.
Central R. R. Co. v. Lamphey, 899.
Central Ry. Co. v. Denson, 909.
Central Trans. Co. v. Pullman, 559.
Central Trust Co. v. Wabash, St. L.
& P. Ry. Co., 893, 1090.
Chaddock v. Vanner, 940.
Chalke v. Dickinson, 702.
Chamberlain v. McAllister, 760, 859.
Chamberlain v. West, 897.
Chamberland v. West End of LOn-
don Ry. Co., 469, 470.
Chambers v. Chalmers, 1113.
Champaign v. Harmon, 559.
Champion v. Cotton, 744.
Champion v. Ulmer, 733.
Champlin v. Layton, 721, 722.
Chandler v. Simmons, 711.
Chandler v. Sprauge, 937.
Chapin v. Brown, 778.
Chapin v. Lapham, 921.
Chaplin v. Com., 1032.
Chapman v. Brooks, 891.
Chapman v. Chapman, 983.
Chapman v. Milvain, 564.
Chapman v. Rose, 723, 933.
Chappel v. Brockway, 774.
Chappel v. Stewart, 1066. , -
Chappell v. United States, 196.
Chappell, C. & T. Co. v. Sulphur M.
Co., 623.
Chapple v. Coope, 681.
Charles v. Rennick, 931.
Charles River Bridge v. Warren
Bridge, 157, 439, 701.
Chartiers Coal Co. v. Millon, 962.
Chase v. Cheney, 257.
Chase v. Denny, 862.
Chase V. Fitz, 740.
Chase V. McDonnell, 989.
Chase v. Tuttle, 1086.
Chase v. United States, 413.
Chasemore v. Richards, 1037.
Cheely v. Clayton, 659.
Chenango B. Co. v. Paige, 597.
Cheney v. Arnold, 644, 645.
Cherokee Nation v. Georgia, 164, 234,
601, 958, 959.
Cherokee Nation v. Railway Co., 235,
601, 1063.
Chester v. Dickerson, 839.
Chesterman v. Lamb, 871.
Chetwood, In re, 1035, 1094.
Chew v. Bank of B., 715.
Chew v. Com., 982.
C. & A. Ry. Co. v. Gretzner, 255.
& A. Ry. Co. v. Hoyt, 853, 855,858.
& A. Ry. Co. v. Maher, 474.
Co. v. May, 850, 852, 854,
Co. v. Scates, 909,
Co. v. Ross, S52.
Co. v. Mosby, 709, 715.
W.
V.
§
ºN.
ºy.
;
i
. Co. v. McGlinn, 178, 230.
. Ry. Co. v. Stein, 1061.
. Ry. Co. v. Wood, 1128.
. L. Ry. Co. v. Holbrook, 1128.
y. Co. v. Bayfield, 856.
y. Co. v. Williams, 628.
Co. v. Hazzard, 255.
Co. v. Johnson, 255.
Co. v. Jones, 1062.
. C. Ry. Co. v. Troesch, 849.
W. Ry. Co. v. Frazer, 909.
& P. R. R. Co. v. Bell, 1142.
& P. R. R. Co. v. Kennedy,
;
R
R
I
S
t
i
1
;
C., W. & Z. Ry. Co. v. Iliff, 811.
Chicago v. McGraw, 557.
Chicago v. Maroney, 849.
Chicago v. O’Brennan, 553.
Chicago v. Turner, 557.
Chicago v. Van Ingen, 1020.
Chicago, etc. Ry. Co. v. Belliwith, 724.
Chicago, etc. Ry. Co. v. Jones, 899.
Chicago, etc. Ry. Co. v. Loeb, 474,
475.
Chicago, etc. Ry. Co. v. West, 860.
Chicago, etc. Ry. Co. v. Witty, 902.
Chicago Mut. Ben. Ass’n v. Hunt,
483, 485, 558, 572, 579.
Chicago Pkg. Co. v. Chicago, 551.
Chinese Excl. Case, 600, 604, 606, 607.
Chippendale, Ex parte, 589.
Chisholm v. Georgia, 2, 21, 30, 72, 118,
145, 158, 163, 167, 180, 187, 189, 191,
195, 199, 204, 240, 311, 401, 468, 471,
479,968, 1044, 1048, 1097.
Chisholm v. National Cap. I. Co., 911.
xxvi
TABLE OF CASES.
Clark v.
References are to pages.
Chisk v. Wood, 532, 872.
Choen v. Porter, 667.
Chopin v. Runte, 987.
Chouteau v. Allen, 419.
Chrisman v. Mayor, 627.
Church v. Knox, 833.
Chy Lung v. Freeman, 340.
Chynoweth v. Tenney, 862.
Cilly v. Cilly, 676.
Cincinnati v. Hafer, 690, 1104.
Cincinnati v. Steinkamp, 476.
Cincinnati v. Stone, 847.
Cincinnati, H. & D. Ry. Co. v. Mor-
ris, 771.
Cincinnati, N. O. & T. P. R. Co. v.
Int. C. C., 905.
Citizens' Bank v. Nantucket S. B.
Co., 899.
City of Chicago v. People, 534.
City of Col. v. Howard, 892.
City of Detroit v. Chapin, 480.
City of Fulton v. Northern Ill. Col-
lege, 558. -
City of Hartford v. Hartford Elec.
Light Co., 525.
City of Olney v. Harvey, 545.
City of Paterson v. Society, 544, 546.
City Nat. Bank v. Kusworm, 727.
Civil Rights Cases, 116,607, 617, 621.
Claflin v. Houseman, 1096.
Claggett v. Kilbourne, 833.
Clapp v. Mason, 466. -
Clapp v. Nelson, 889.
Clapp v. Sohmer, 876.
Clark v. Bayer, 679.
Clark v. Carey, 936.
Clark v. City of Rochester, 447, 448.
Clark v. Clark, 983
Clark v. Dillman, 805.
Clark v. Field, 651.
Clark v. Graham, 1009, 1010, 1018.
Clark v. Great N. Ry. Co., 707.
Johnson, 930.
Laird, 568, 825.
Manchester, 760.
Martin, 929.
Maurin, 876.
Moody, 813.
Pease, 930, 931, 933.
United States, 892.
Clark v. Van Remsdyk, 804,
Clark v. White, 390, 1078.
Clark, Ex parte, 293.
Clark, In re, 1029.
Clarke v. Lott, 662.
Clason v. Bailey, 741.
Classon v. Armes, 409, 410.
Clay v. Hodge, 759.
Clay v. Yates, 767.
Clayton v. Stone, 697.
Clearwater v. Meredith, 1063.
Clements v. Marston, 1140.
Clifford v. Campfe, 984.
Clark v.
Clark v.
Clark v.
Clark v.
Clark v.
Clark v.
Clark v.
Climi v. Wood, 964,
Clinton v. Clinton, 215, 663.
Clinton v. Hope Ins. Co. 730.
Clinton Bridge, The, 413.
Clinton Wire Cloth Co. v. Gardner,
991. -
Close v. Burlington, C. R. & N. Ry.
Co., 750, 751.
| Closson v. Armes, 257.
Clough v. Clough, 761.
Clough v. Curtis, 274.
Clough v. Holden, 947.
Clouston v. Sherer, 1068.
Clow v. Chapman, 670.
Clutt v. Wiggins, 897.
Clyde v. Rich. & D. Ry. Co., 848.
Clydesdale Bank v. Paton, 1058.
Coal Co. v. Blatchford, 1100.
Coal Co. v. McGuire, 857.
Coats v. Holbrook, 700.
Coats v. Merrick Thread Co., 701.
Cobb v. Knapp, 815.
Cobb v. Mutual Ben. Ass'n, 915.
Coburn v. Pickering, 866.
Cobº, v. San Mateo Co., 523, 1010,
1019. -
Cochran v. Adams, 1121.
Cochran v. Cummings, 722.
Coddington v. Bay, 865.
Coffey v. Emigh, 1069.
Cogar v. Burns Lumber Co., 863.
Coggill v. H. & N. H. Ry. Co., 863.
Coggs v. Bernard, 71, 243, 247, 255,
858, 891, 899, 900, 907.
Cogswell v. Armstrong, 1082.
Cohen v. Norton, 991.
Cohen v. Virginia, 196, 200, 311, 780.
Cohn v. People, 700.
Coit v. Amalgamating Co., 578.
Coker v. Ropes, 811.
Colam v. Pagett, 695.
Col. C. & D. Co. v. United States, 236.
Coldiron Co. v. Ashville, 1121.
Cole v. Cole, 658.
Cole v. Executors, 985.
Cole v. Milmine, 783.
Cole v. Pennoyer, 710.
Cole BrOS. v. Wood, 853.
Colee v. Colee, 1018.
Coleman v. Huyler, 799.
Coleman v. Lamb, 923.
Coleman v. Wathen, 697.
Coles v. Coles, 832.
Collector v. Day, 320, 321.
Colleger v. Cleveland, 557.
Collins v. Bennett, 892.
Collins v. Blantern, 285.
Collins v. Collins, 645, 647, 648.
Collins v. Cooper, 805.
Colt v. McMechen, 900.
Colton v. Ross, 1084.
Comer v. Chamberlain, 981.
Com. v. Clark, 931, 932, 933.
TABLE OF CASES.
xxvii
References are to pages.
*Com. v. Coffey, 677.
Com. v. Cuncannon, 894.
Com. v. Cutler, 882.
Com. v. Davis, 552.
Com. v. Dean, 1150.
Com. v. Diredow, 981.
‘Com. v. Farrar, 1142.
*Com. v. Griffin, 1095.
Com. v. Hamilton Mfg. Co., 460.
Com. v. Hampton, 1150.
Com. v. Hancock Bridge, 599.
Com. v. Hess, 864.
Com. v. Lane, 639, 640, 641.
Com. v. McAfee, 632. -*
'Com. v. McCalmont, 729.
Com. v. McClure, 1020.
Com. v. Maclin, 696.
Com. v. Munson, 644.
Com. v. Roberts, 675,
Com. v. Society, 596.
Com, v. Smith, 595.
Com. v. Starr, 461.
Com. v. U. S. Exp. Co., 564,
Com. v. Warwick, 280, 452, 1028.
Com. Bank v. Varnum, 946.
'Com. Bank of Buffalo v. Warren,
804.
Commissioners v. Mighels, 518.
*Commissioners of Revenue, 547.
Comstock v. Clearfield & M. Ry. Co.,
475.
Comstock v. Hannah, 933. .
Comstock v. Torrey, 812.
Comstock v. Ward, 742.
Conable v. Lynch, 863.
Condict v. Railroad Co., 905. l
“Condit v. Blackwell, 812, 1068,
Condrey v. West, 745.
“Conduit v. Ross, 1017.
Congress Spring Co. v. High Rock
Co., 700.
Conklin v. Davis, 998.
Conklin v. Plant, 1087.
“Conn. Nat. Bank v. Armstrong, 950.
Conn. & Pass. River R. R. Co. v. Hol-
ton, 996.
Conner v. Mayor of New York, 157.
“Conover v. Parker, 534.
«Conrad v. Atl. Ins. Co., 890.
Conrad v. Hildebrand, 892.
Conrad v. La Rue, 747.
Conrad v. Waples, 428.
Conroy v. Taylor, 701.
Cons. Coal Co. v. Haenni, 857.
Cont. Bank v. Heilman, 1089.
Cont. Ins. Co. v. Webb. 1088.
Converse v. Harzfeldt, 869.
‘Cook v. Berlin Mills Co., 584, 589, 590,
813. &
Cook v. Bradley, 748, 749.
Cook v. Champlain, etc. Co., 979.
Cook v. Chicago, R. T. & Pac. R. R.
Co., 904.
Cook v. Corthell, 862.
Cook v. Darling, 1034.
Cook v. McCabe, 758.
Cook v. Renick, 245.
Cook v. Tullis, 1084.
Cook Co. v. McCrae, 559.
Cooke v. Millard, 875.
Cooke v. Oxley, 719, 781.
Cooke v. Walley, 683.
Cooley v. Board of Wardens, 347.
Cooley v. Scarlett, 1082.
Cooney v. Town of Hartland, 523.
Coonrod v. Madden, 1138, 1139.
Cooper v. Butler, 858.
Cooper v. Cooper, 981, 1006, 1015.
Cooper v. Reynolds, 142, 1034, 1036,
Cooper v. Simpson, 890, 891.
Cooper v. Sunderland, 1034.
Coppell v. Hall, 784.
Corbin v. Com., 1121.
Corcoran v. Holbrook, 850.
Corfield v. Coryell, 616, 624.
Corliss v. Walker Co., 1066.
Cornish v. Abington, 732.
Corrie v. Corrie, 676.
Corson v. Maryland, 345.
Cortelyou v. Lansing, 880, 892.
Corwin v. Wallace, 759.
Cothran v. Ellis, 782.
Cottage St. M. Ch. v. Kendall, 744,
Cotton v. Holliday, 813.
Cotton v. Willoughby, 862.
Cotton Cases, 875.
Cotton Mills v. Commissioners, 446.
Cottrill v. Krum, 724.
Couch v. Meeker, 729.
Coudert v. Cohn, 990. .
Counselman v. Hitchcock, 357, 366,
1132, 1140.
Counselman v. Reichart, '83.
County of McLean v. Ploomington,
467, 510.
County of St. Louis v. Cleland, 525.
County of Yolo v. Barney, 1010.
Cowan v. Hallock, 929.
Cowan v. O'Connor, 719.
Cowden v. Pac. S. S. Co., 904.
Cowdrey v. Hitchcock, 985, 1021.
Cowell v. Springs Co., 1016.
COwen v. Milburn, 630.
Cowles v. Peck, 918, 923.
Cowls v. Cowls, 685.
Cox v. Hickman, 822, 823, 828, 835,
836. -
Cox v. Midland Ry. Co., 809.
Cox v. National Bank, 947.
Cox v. Rogers, 1021.
Coxe v. State, 471, 476, 499, 597, 702,
971.
Coyle v. Com., 530.
Crabill v. Marsh, 742.
Craft Ref. Co. v. Brewing Co., 1063.
1064, 1107.
xxviii
TABLE OF CASES.
References are to pages.
Craft Ref. Co. v. Quinnipiac, 1134.
Craig v. McKinney, 1128.
Craig v. Parkis, 923.
Craig v. People, 1091.
Craighead v. Peterson, 804.
Crane v. Ely, 1072.
Cranson v. Smith, 699.
Crawford v. Davis, 867.
Crawford v. Rambo, 993.
Crawshay v. Maule, 831.
Craythorne v. Swinburne, 925,
Crepps v. Durden, 1032.
Creswell v. Lanahan, 805.
Crews v. Heard, 798.
Crider, v. Shelby, 936.
Crispin v. Babbitt, 855.
Crocker v. Colwell, 827.
Crofut v. Danbury, 521, 546, 559.
Cromwell v. County of Sac, 1109.
Crook v. Cowan, 720.
Cropsey v. Ogden, 983.
Cross v. Grant, 670.
Cross v. Harrison, 231.
Cross v. Jackson, 569.
Crossfield v. Such, 830.
Crouch v. Kerr, 1123.
Crowder V. Reed, 773.
Croxall v. Shererd, 971, 972, 974, 975.
Croyle v. Moses, 722.
Cruikshank v. Cogswell, 867.
Cruse v. Aden, 680.
Cuddon v. Eastwick, 506.
Culbertson v. Nelson, 935, 936.
Cullen v. Lord, 892.
Culter v. Reynolds, 950.
Culver v. Hide & Leather Bank, 730,
Cumber v. Wane, 745.
Cumberland Coal & T. Co. v. Sher-
man, 590.
Cuming v. Railway Co., 679.
Cummings v. Bailey, 387.
Cummings v. Missouri, 49, 51, 293,
454, 455, 459, 618.
Cunningham v. Cunningham, 650,
652.
Cunningham v. Morrell, 753.
Cunningham v. Reardon, 681.
Currie v. Currie, 655.
Currier v. Sears, 715.
Curtis v. Devoe, 688.
Curtis v. Sage, 740.
Cushman v. Dement, 940.
Cutler v. Callison, 1011.
Cutter v. Bonney, 897.
Cutter v. Powell, 756, 757, 758.
Cutshaw v. Fargo, 493, 497, 500.
D.
Dailey v New Haven, 521.
T)aken v. Grave, 946.
Dale v. Lee, 886.
Dale v. Weeks, 939.
Dalrymple v. Dalrymple, 637.
Dana v. Short, 718.
Danehoffer v. State, 677.
Danehower v. Dawson, 1004.
Daniels v. Newton, 860.
Daniels v. Tearney, 560, 592.
Danner v. Cheeseborough, 742.
Darling v. Iron Works, 688.
Darst v. Gale, 560.
Dartmouth College Case, 84, 120, 393,
533, 703, 707. -
Dash v. Van Kleeck, 275, 451, 452.
Davenport v. Cloverport, 1036, 1066.
Davenport v. Moore, 1080.
Davies v. Crawfordsville, 554,
Davies v. Davies, 767.
Davis v. Davis, 658.
Davis v. Furniture Co., 860.
Davis v. Hamlin, 811. -
Davis v. Havard, 773.
Davis v. Headley, 1082.
Davis v. McCready, 934.
Davis v. Mason, 982.
Davis v. Massachusetts, 554, 995.
Davis v. Old Colony Ry. Co., 559.
Davis v. Peabody, 1063, 1106.
Davis v. Railroad Co., 900.
Davis v. St. L., I. M. & S. R. Co., 850,
Davis V. Settle, 769.
Davis v. Weibbold, 236.
Davock v. Moore, 556.
Davoue v. Fanning, 589, 813.
Dawes v. Dobbs, 1058.
Day v. Holmes, 892, 894.
Day v. Munson, 254.
Day v. Swift, 880.
Day v. Union India Rubber Co., 723.
Dayton v. Trull, 944.
Deal v. Maxwell, 875.
Dean v. Driggs, 895.
Dean v. Ellis, 792.
Dean v. Emerson, 775, 777.
Dean v. Peel, 680.
Dean v. Walker, 795.
Debs, In re, 359, 360, 388, 1086.
De Camp v. Hamma, 725,933.
Decan v. Shipper, 878.
Decatur Bank v. St. L. Bank, 695.
De Chastellux v. Fairchild, 278.
Decker v. Fessler, 687.
Deeley v. Dwight, 881.
Deffeback v. Hawke, 236.
De Garman’s Estate, 661.
De Gray v. Monmouth Beach Co.,
1016.
Delacroix v. Bulkley, 790.
Delafield v. Illinois, 934.
Delaney v. Glement, 1004.
Delano v. Bennett, 1003.
Delaplain v. Grubb, 727. ,
De La Vergne Ref. Co. v. N. O. & W.
R. Co., 869, 872.
TAIBILE OF CASES.
xxix
Beferences are to pages.
I)elaware Canal Co. v. Clarke, 700.
Delaware & L. W. Ry. Co. v. Bowers,
755.
De Loy v. Travelers’ Ins. Co., 915,
Delmonico v. Guillaume, 832.
De Meli v. De Meli, 661.
De Mott v. Hagerman, 989.
Dempsey v. Gardner, 867.
Dempsey v. Pforzheimer, 883.
Denison v. Denison, 644.
Dennet v. Hopheimer, 980.
Dennett v. Dennett, 979.
TJennett's Petition, 278.
T)ennis V. Clark, 679.
Tennis v. McCagg, 804.
Dennistoun v. Stewart, 945.
Denny v. Bennett, 390, 892, 393.
Denny v. Liricoln, 882.
T)enny v. McCabe, 981.
Denton v. Jackson, 268.
Denver, etc. Ry. Co. v. Harris, 592.
De Peyster v. Michael, 958, 967, 971,
972, 973, 978.
Dering v. Earl of Winchester, 925.
T}e Rivafinoli v. Corsetti, 846, 1079.
T}ermott v. Jones, 751, 753.
Deshler v. Dodge, 692.
Deshon v. Bigelow, 863.
T)eskins v. Gose, 677.
T)es Moines River Grants, 424,
De Thoren v. Attorney-General, 650,
651, 652.
Detroit v. Blackeby, 548.
T)etroit v. Board, 555.
Detroit, L. & N. Ry. Co. v. McCam-
mon, 1110.
Detroit Ry. Co. v. Mills, 555.
Detwiller v. City of New York, 525.
Devendorf v. Emmons, 713.
Devine v. Com’rs Cook Co., 476.
Dewey v. Detroit & Gill Ry. Co., 857.
Dewey v. Union School Dist., 793.
Dewey v. Warriner, 1133, 1140.
De Wolf v. City of Chicago, 717, 748,
Des; v. Hall, 708, 710, 714, 715, 717,
6.
Dexter v. Innes, 1061.
Dexter v. Norton, 862.
Dexter v. Phillips, 989.
D'Eyncourt v. Gregory, 963.
Deyo v. Moss, 1061.
D’Graff V. Went, 603.
D. & H. Canal Co. v. Pa. Coal Co.,
773
T)iamond Match Co. v. Roeber, 777.
Dibblee v. Furniss, 1131.
T)ickens v. Beal, 945.
Dickerman v. Ashton, 806.
Dickerson v. Dodd, 719.
Dickey v. Reed, 1108.
Dickinson v. Hall, 746.
Dickinson Co. v. Miss. Valley Ins.
Co., 808.
Dill v. Wareham, 559.
Dillaway v. N. W. Bank, 951.
Ditson v. Ditson, 659.
Diversey v. Kellogg, 870.
Diversey v. Smith, 1094.
Dixie Cigar Co. v. Southern Ex. Co.,
902.
Dixon v. Campbell, 1088.
Dixon v. Niccols, 989.
Doan v. Doan, 979.
Doan v. Duncan, 809.
Doan v. Dunham, 731, 870, 871.
Dob v. Halsey, 838
Dobson v. Eldridge, 979.
Dobson v. Racey, 1119.
Dodd v. St. John, 713.
Dodge v. Cole, 139, 677, 1044, 1049,
1054.
Dodge v. Granger, 549.
Dodge v. Woolsey, 158, 184, 191, 192,
193, 565, 594, 693, 1098, 1100.
Doe v. Acklann, 186.
Doe v. Beebe, 233.
Doe v. Roe, 669, 1117.
Doe d. Raquet v. Roll, 784.
Dollar Savings Bank Case, 336, 337.
Donahue v. County of Will, 157.
Donald v. Malloy, 369.
Donaldson v. Becket, 697.
Donaldson v. Farwell, 873.
Donnell v. State, 908.
Donnellan v. Reed, 740.
Donovan v. Hartford Ry. Co., 909.
Donovan v. Ward, 711.
Dooley v. Pease, 867.
Dora Matthews, The, 894.
Dorman v. Heist, 280. .
Dorn v. Town of Oyster Bay, 509.
Dorr v. N. J. St. Nav. Co., 902,
Dorsey v. Packwood, 746.
Dougherty v. Hughes, 1087.
Dougherty v. Posegate, 889.
Dougherty v. Van Nostrand, 842.
Douglass v. County of Pike, 92.
Douglass v. Matting, 723,733.
Douglass v. Reynolds, 920.
Dounce v. Dow, 871.
Dover v. Plemmons, 760.
Dover Gas Works Co. v. American
F. I. Co., 915.
T)ows v. Perrin, 878. -
Doyle v. C., St. P. & K. C. R. Co.,908.
Drake v. Kochersperger, 465.
Drake v. Starr, 665.
Drake v. White, 907.
Drakeley v. Gregg, 804.
Dred Scott Case, 168, 228, 605.
Drennan v. Douglass, 773.
Dresbach v. Railroad Co., 904.
Drixer v. Drixer, 657.
Drovers’ Nat. Bank v. Provision Co.,
950.
Drummond v. Artemus, 697.
XXX
TARLE OF CASES."
References are to pages.
Drummond v. Yager, 918, 922, 925.
Drummond Carriage Co. v. Mills, 883.
T}rummond T. Co. v. Randall, 582, 595.
T]ube v. Lewiston, 855,
T]ubuque & Pac. R. R. Co. v. Litch-
field, 418.
T)uchess of Kingston’s Case, 1109.
Dudley v. Camden & P. F. Co., 907.
3Dudley v. Congregation, 1058.
Duffies v. Duffies, 669.
Dugro, In re, 525.
Duº, g Queensberry v. Snebbeare,
697.
T)uncan v. Baker, 761.
Duncan v. Lyon, 1075.
TXuncan v. Missouri, 1029.
Dunºº, In re, 185, 193, 197, 262, 445,
1138.
T]undy v. Chambers, 996, 1018.
I) unham v. Dunham, 660.
Dunlap v. C., M. & St. P. Ry. Co.,
731.
Dunlap v. Monroe, 896.
T}unlap v. United States, 357, 414,
TXunn v. Berkshire, 742.
Dunn v. Bulkley, 987.
Dunn v. Johnson, 1118.
Dunn v. State, 1101.
Dunn v. Township, 548.
T)unning v. Mead, 867.
Duntley v. Boston & Me. R. R.
902.
Durand v. Hollins, 434.
Durfee v. Abbott, 712.
Durgin v. Baker, 845.
Durgin v. Smith, 740.
IDurgin v. Somers, 806.
Durrell v. Hayward, 681.
Duryea v. Burt, 563.
Dutcher v. People, 481.
Dutchess Co. v. Harding, 871.
Dutton v. Poole, 796.
Duval v. Pullman P. C. Co., 898.
Duval v. Wellman, 785.
I)wight v. Brewster, 899.
Dynes v. Hoover, 408, 411.
Co.,
IE.
Eagle Packet Co. v. Defries, 908.
Eakin v. Hansom, 759.
Eakin v. Raub, 280, 286.
Eames v. Hardin, 1077.
East Counties R. Co. v. Brown, S60.
IEast Ind. Co. v. Tritton, 725.
|Eastman v. Reichenbach, 848.
Eastman v. Wright, 708.
East St. Louis v. Gas Co., 560.
Eastºnn, Va. & Ga. R. Co. v. Kelly,
03.
JEast & West India Docks Co. v.
Gattke, 470.
Eastwood v. Kenyon, 739, 748, 749,
922. .
Eaton v. Boston, Con. & Montreal
Ry., 126,127, 969, 1037.
Taton v. Eaton, 715, 716.
Eaton v. Lynde, 893.
Eaton, Cole & B. Co. v. Avery, 873.
Eberts v. Eberts, 1020. .
Eckhart v. Irons, 1017.
Eden v. Chappee, 739, 792.
Eden v. Drey, 897
Eddy v. Davidson, 922.
Eddy v. Roberts, 796.
Eden v. People, 552.
Edgerly v. Concord, 548.
Edgerly v. Cover, 328,811.
Edgerton v. Muse, 1080.
Edgerton v. Preston, 827.
Edmeston v. Lyde, 1077.
Edmonston v. Hartshorn, 1074.
Edwards v. Davis, 748, 749.
Edwards v. T)rake, 1123.
Edwards v. Harben, 867, 872.
Edwards v. Kearzey, 393, 987, 1027.
Edwards v. Rodgers, 1121. .
Egbert v. Greenwalt, 672.
Eidman v. Bowman, 574, 578.
Eighth Nat. Bank v. Fitch, 825.
Ekain v. Raub, 280.
Eldred v. Malloy, 781.
Eldred v. Sexton, 419.
Eldridge v. Hill, 1083.
Eldridge v. Smith, 1074.
Eldridge v. Walker, 813.
Elgin v. Eaton, 554.
Eliason v. Henshaw, 718.
Elk v Wilkins, 606.
Elkhart Co. Lodge v. Curry, 770.
Ell v. Northern Pac. Ry. Co., 850,853.
Ellington v. Ellington, 680, 843.
Elliott v. Abbott, 810, 924.
Elliott v. Bodine, 815.
Elliott v. Pell, 1122.
Elliott v. Philadelphia, 557.
Elliott v. Swartwout, 434.
Ellis v. Andrews, 722.
Ellis v. Carey, 743.
Ellis v. Clark, 743.
Ellis v. Marshall, 490, 537, 565.
Ellsworth v. Learned, 1032, 1084.
Elmore v. Drainage Com., 502, 536.
Elston v. Jasper, 715.
Elwes v. Maw, 964,
Elyton Land Co. v. Birmingham W.
& Elev. Co., 577.
Elyton Land Co., Ex parte, 1130.
Elzas v. Elzas, 648, 652, 657.
Emack v. Kane, 1086.
Embry v. Jennison, 766, 783.
Emerick v. Harris, 273, 450.
Emerson v. Atwater, 254, 1002.
Emerson v. Brigham, 722.
Emerson v. Patch, 816.
TABLE OF CASES.
YXXL
References are to pages.
Emerson v. Prov. Hat Mfg. Co., 806.
Emerson v. Slater, 729, 740.
Emerson v. Spicer, 684.
Emery v. Hoyt, 714.
Emery’s Sons v. Irving Nat. Bank,
869, 878.
Emmitt v. Brophy, 795.
Emmons v. Moore, 999.
Empire S. Bank v. Beard, 587, 589.
Empire Transp. Co. v. Philadelphia
& R. Coal & I. Co., 901.
Emporia v. Soden, 695.
Enders v. Enders, 768.
Endleman v. United States, 239.
Enfield v. Jordan, 932.
Engelbert v. Pritchett, 711.
Enos v. Hunter, 1082.
Entºise Sav. Ass’n v. Zumstein,
31.
Erwin v. Downs, 948.
Erwin's Appeal, S31.
Escº, etc. Co. v. City of Chicago,
15
Essex Co. Elec. Co. v. Kelly, 848.
E. S. T. Co. v. Bickford, 1058.
Estes v. Furlong, 718.
Eustis v. Parker, 487, 510.
Evans v. Evans, 842.
Evans v. G. R. Co., 986.
Bvans v. Marlett, 243, 937.
Evans v. U. S. Life Ins. Co., 915.
Evans, Ex parte, 555.
Tiverett v. Hall, 868, 872.
Everit v. Strong, 839.
Ewan v. Lippincott, 857.
Ewbanks v. Ashley, 550, 551.
Ewell v. Dagg, 789, 1027. -
Exchange Bank v. Rice, 796.
Express Cases, 905.
Eyre v. Jacob, 466.
Eyser v. Weissgerber, 759.
Ezzard v. Bell, 924.
F.
Fain v. Gathright, 1105.
Fair v. Stevenot, 1019.
Fairbank v. Haentzche, 849.
Fairbank Co. v. Bell Mfg. Co., 701.
Fairchild v. Bell, 749.
Pairchild v. Hedges, 531.
Fairfax v. Hunter, 602, 603.
fairs v. Dunne, 999.
Falvez v. Richmond, 869.
IFanning v. Russell, 1128.
Fareira v. Gabell, 780.
Fargo v. L., N. A. & C. Ry. Co., 491,
568.
Farmers’ Insurance Co. v. Knight,
574, 912.
Farmers’ L. & T. Co. v. Northern
Pac. R. Co., 361.
Farmers’ L. & T. Co. v. Seifke, 1142,
1143.
Farmers’ & Mech. Nat. Bank v. Dear-
ing, 374.
Farmers’ & Merchants’ Bank v.
Butchers’ & Drovers’ Bank, 809.
Farmers’ Phosphate Co. v. Gill, 869.
Farmington Ry. Co. v. Com., 1095.
Farnsworth v. Minn. Pa. Ry. Co.,970.
Farrell v. Richmond & D. R. Co., 876.
Farwell v. Boston, etc. Ry. Co., 851,
852, 857.
Farwell v. Gt. W. Tel. Co., 584, 1069,
1070, 1080.
Faunce v. Burke, 773.
Favorite v. Lord, 931, 933.
Fawsett v. Osborn, 863.
Fay v. Muzzy, 962.
Fay v. Pac. Imp. Co., 896, 897.
Fayette Länd Co. v. L. & N. Ry. Co.,
1071.
Felker v. ErnersOn, 806.
Felt v. School District, 893.
Female Academy v. Sullivan, 581,
973, 1006.
Fenkhausen v. Fellows, 876.
Fenner v. Railroad Co., 903.
Fenton v. Clark, 756.
Fereday v. Wightwick, 830.
Ferguson v. Brooks, 667.
Ferguson v. Crawford, 1034.
Ferguson v. Dent, 812.
Ferguson v. Gies, 908.
Ferguson v. Lee, 883.
Ferguson v. Tweedy, 982.
Ferrell v. Maxwell, 922.
Ferren v. Railroad Co., 855.
Petrow v. Wiseman, 806.
Ficklen v. Shelby Co., 465.
Field v. Barling, 553. -
Field v. Farrington, 804.
Field v. Herrick, 988, 991.
Field v. People, 291, 481.
Fietsam v. Hay, 498, 499.
Fink v. Cox, 743.
Fink v. Smith, 747.
Finney v. Apgar, 875.
First Nat. Bank v. Briggs, 987.
First Nat. Bank v. Farmers’ Bank,
732.
First Nat. Bank v. Groshaus, 669.
First Nat. Bank v. Gustin Min. Co.,
578.
First Nat. Bank v. Hale, 718.
First Nat. Bank v. Harkness, 890.
First Nat. Bank v. Hollinsworth, 986.
First Nat. Bank v. Pierce, 920, 924.
First Nat. Bank v. Skeen, 936.
First Nat. Bank of Baltimore v.
Gerke, 923.
First Parish v. Dunning, 267.
Fish v. Chapman, 900.
Fish v. Cleland, 722.
xxxii
TAIBLE OF CASES.
Fralich v. Despar, 848.
France v. Franz, 687.
France v. State, 481.
Francis v. Dubuque, etc. R. Co., 895.
Francis v. Kirker, 813.
Frank v. Miller, 741.
Frankenthal v. Meyer, 884.
Franklin v. McCorkle, 680.
Franklin Bridge Co. v. Wood, 497.
Franklin Nat. Bank v. Whitehead,
895.
Frary v. Sterling, 740.
Fraser v. Gates, 742.
Fraser v. Schroeder, 854.
References are to pages.
Fish v. Glover. 939.
Fisher v. Boston, 549.
Fisher v. Budlong, 726.
ring Elec. Co. v. Bolte Iron Works,
71.
Fitch v. Jones, 764,
Fitch, In re, 1095.
Fitchburg Ry. Co. v. Hanna, 904.
Fitzgua v. Grand Trunk Ry. Co.,
787.
Fitzgerald v. Quann, 667.
Fitzgerald v. Reed, 715.
Fitzhugh v. Love’s Ex’rs, 940.
Pitzpatrick v. Rutten, 1105.
Eizette v. Fizette, 657.
Elaherty, In re, 554.
Flanagan v. Wood, 867.
Flanders v. Cobb, 1061.
Fleming v. People, 652.
Flenniken v. Marshall, 594.
Fletcher v. Martin, 882.
Fletcher v. Peck, 141, 291, 450, 736,
787, 788, 957.
Fletcher v. People, 674.
|Fletcher v. Pullen, 837.
Fletcher v. Tuttle, 1066.
Flournoy v. Jeffersonville, 450.
Flowers v. Flowers, 983.
Floyd v. Smith, 993.
Foley v. Hill, 1115.
Foley v. Phelps, 683.
Folger v. Col. Ins. Co., 596, 1032.
Folsom v. Township, 491.
Foltz v. Hodge, 626.
Forbes v. Cochran, 89.
Forbes v. Tuckman, 1130.
IForbes Co. v. Winters, 1095.
Ford v. Cobb, 964.
Ford v. C., R. I. & P. R. Co., 858.
Ford v. Fitchburg R. Co., 850.
Ford v. Phillips, 712.
Ford v. Williams, 815, 817.
Fort v. Card, 670.
Fort ºrborn Lodge v. Kline, 955,
1009.
Fortenbury v. State, 783.
Forward v. Pittard, 903.
|Fosburg v. Phillips Fuel Co., 848.
Foster v. Browning. 994.
FOster v. Dawler, 790.
Foster v. Essex Bank, 884, 892, 906.
Foster v. Joslin, 947.
Foster v. McKennan, 733.
Foster v. Neilson, 428.
Foster v. Wells, 771.
FOstick v. Van Husan, 1060.
Fougner v. First Nat. Bank, 822.
Fountain v. Hendley, 986.
Powler v. Armour, 859.
Fowler v. Brantley, 731, 732.
Fowler v. Redican, 728, 729.
Fox v. Citizens’ Bank & T. Co., 936.
Fradley v. Hyland, 816.
| Frazier v. Frazier, 696, 700.
Frazier's Case, 630.
Frear v. Hardenbergh, 748.
Frear v. Sweet, 1061.
Frederick v. Groshon, 1068.
Freeborn v. Smith, 453.
Freºnder v. Tex. & P. Ry. Co.,
37.
Freeman v. Freeman, 884.
Freeman v. Grant, 1061.
Freeman v. Nichols, 712.
Freisner v. Symonds, 676.
French v. Hardin CO., 814,
French v. Vining, 722,
|Freund v. Hixon, 815.
Friedman v. Holberg, 867.
Friend v. Durks, 680.
Frisbie v. United States, 356.
Frith v. Lawrence, 717.
Fritz v. Fritz, 657.
Fritz v. Hathaway, 1061.
Fritz v. Mo., K. & T. R. Co., 858.
Frost v. Clarkson, 783.
Fry v. Leslie, 680, 710.
Fulgham v. Steele, 632.
Fuller v. Attorney-General, 553.
Fuller v. Bean, 864.
Fuller v. Bradley, 899.
Fuller v. Duane, 771.
Fuller v. Insurance Co., 724.
Fuller v. Page, 883.
Fulton, Ex parte, 920.
Fulton City v. N. Ill. College, 560.
Fulwood’s Case, 269.
Fuss v. Fuss, 664,
G.
Gage v. Lewis, 722, 725, 746, 753.
Gaines v. Fuentes, 1084.
Gaines v. Miller, 804.
Gaines v. New Orleans, 1068, 1074.
Gale v. Walsh, 945.
Galesburg v. Hawkins, 545, 1027.
Gall v. Beckstein, 856.
Gall v. Gall, 652.
Gallinger v. L. S. Tr. Co., 805.
Galveston v. Posnainsky, 503.
TABLE OF CASES.
xxxiii
References are to pages.
Galºon. etc. Ry. Co. v. Gonzales,
583.
Galvin v. Prentice, 767.
Gamble v. Stauber Mfg. Co., 732.
Gandell v. Pontigny, 859.
Gannon v. Ruffin, 1144.
G. & C. N. Ry. Co. v. Jacobs, 255.
. & C. N. Ry. Co. v. Pound, 1033.
C . F. Ry. Co. v. Ellis, 599.
S. F. Ry. Co. v. Kelly, 584, 590,
8 13, 1070.
, H. & S. F. Ry. Co. v. Gonzales, 499.
. & S. W. R. Co. v. Barrett, 730,
Gard v. Gard, 1037.
Gardiner v. Carson, 752.
Gardiner v. Rowland, 1038.
Gardner v. Collector, 445.
Gardner v. Gardner, 806.
Gardner v. Lane, 861.
Gardner v. Ogden, 1038, 1082.
Garfield v. Paris, 875.
Garland, Ex parte, 49, 51, 431, 454,
455, 459, 1031.
Garlick v. Strong, 1104.
Garlinghouse v. Jacobs, 528.
§arnsey v. Rogers, 798.
Garrett v. Conklin, 797.
Garrett v. Garrett, 701.
Garrett v. Memphis, 337.
Garretson v. N. Atchison Bank, 952,
Gartside Coal Co. v. Maxwell, 597.
Garvin V. Paul, 833.
Gas Co. v. Granger, 1061.
Gassies v. Ballou, 605.
Gates v. Beecher, 947, 948.
Gaty v. Holiday, 892.
Gay v. Baker, 962.
Gay v. Parpart, 1069.
Gay v. Rooke, 929, 935.
Gay v. Ward, 924.
Gaylord Mfg. Co. v. Allen, 870.
Gazzola v. Chambers, 988.
Geilfuss v. Corrigan, 890.
Gelpcke v. Dubuque, 934.
Gelsthorpe v. Furnell, 466.
Genessee Chief, The, 369.
Gentile v. State, 701.
George v. Clogett, 817.
George v. Tate, 725, 1067.
Georgia v. Brailsford, 1082.
Girard v. Bates, 835.
Gerke v. Powell, 533.
Gerº-American T. Co. v. Shallins,
99.
Germania Fire Ins. Co. v. Memphis
& C. R. Co., 724. d
Germania Ins. Co. v. Klewer, 1143,
Germanic Co. v. Shallcross, 1053.
Getman v. Getman, 999.
Gibberson v. Jolly, 931.
Gibbney v. Hayden, 709.
Gibbon v. Hoag, 1003.
Gibbon v. Paynton, 901.
i
C.
:
Gibbons v. Ogden, 191, 192, 343, 344,
346, 352, 361, 701.
Gibbs v. Benjamin, 864.
Gibbs v. Blanchard, 922.
Gibson v. Carruthers, 875, 876,
Gibson v. Mississippi, 608.
Gibson v. Pelkie, 720.
Gibson v. Sheehan, 925.
Gibson v. Stevens, 833.
Gibson v. Warden, 738, 839.
Gibson, Ex parte, 1095.
Giddings v. Blacker, 287.
Giddings v. Iowa Bank, 726.
Gifford v. Corrigan, 796, 798.
Gilbert v. Board, 1095. Á
Gilbert v. Sykes, 780, 782.
Giles v. Giles, 676.
Gill Mfg. Co. v. Hurd, 718.
Gillet v. Mason, 696.
Gillett v. Fairchild, 125.
Gilman v. East R. Co., 849.
Gilman v. Lockwood, 390, 391.
Gilmer v. Lime Point, 468,470, 472.
Gilmore v. Sapp, 970, 1107.
Gilpin v. Hollingsworth, 1006.
Girard Will Case, 630.
Gladney v. Murphy, 680.
Glavin v. Hospital, 523.
Gleeson v. V. M. Ry. Co., 908.
Glencoe L. & G. Co. v. Hudson, 845.
Glenney v. Sted well, 1089.
Glidden v. Mech. Nat. Bank, 891.
Glide, The, 1097.
Gloucester, etc. Co. v. Russia, 778.
Goddard v. Binney, 875.
Goddard v. G. T. Ry. Co., 860.
Goddard v. Jacksonville, 552.
Goddard v. Winchell, 889.
Godden v. Kimmell, 1121.
Goff v. Congle, 1020.
Golden v. Price, 291.
Goldsborough v. Orr, 753.
Goldthwaite v. Janney, 831, 832.
Good v. Fogg, 986.
Good v. Martin, 939.
Goodell, Ex parte, 626.
Goodenow v. Pyler, 809.
Goodman v. Simonds, 933.
Goodnow v. Empire Lum. Co., 711.
Goodrich v. Burbank, 993.
Goodrich v. Downs, 866.
Goodtitle v. Kibbe, 233.
Goodwin v. Richardson, 1005.
Gore v. Gibson, 714, 716.
Gore v. Gore, 973.
GOrden v. Hobart, 1098.
Gordon v. Anderson, 936.
Gordon v. Brewster, 859.
Gordon v. Dickinson, 984.
Gordon v. Gordon, 659.
Gorman v. State, 677.
Goss v. Nugent, 790.
Gossler v. Shepler, 877.
xxxiv.
TABLE OF CASES.
References are to pages.
Gotts v. Clark, 674. r
Gould Coupler Co. v. Pratt, 698.
Gould v. Crow, 663.
Gould v. Hill, 902.
Gould v. Moulahan, 681.
Governor v. Allen & McMurdie, 269,
479, 480, 530.
Governor v. Clark Co., 549.
Gov. etc. Co. v. Meredith, 1037.
Governeur v. Robertson, 602.
Gowett v. Ramsey, 1009.
Grace v. Lynch, 740.
Grace, Ex parte, 450.
Graham v. Castor, 715.
Graham v. St. Charles St. Ry. Co.,592,
Graham v. Smith, 696.
Grand T. B. Co. v. Wright, 669.
Grand Lodge v. Wheeting, 916.
Grand Tower, etc. Co. v. Ullman, 900.
Graft Trunk Ry. Co. v. Cummings,
48.
Grandin v. Le Roy, 1071.
Granger v. Pulaski Co., 518.
Granger L. & H. Ins. Co. v. Ramper,
571, 572, 573.
Grannis v. Clark, 1015.
Grant v. Beard, 804.
Grant v. Button, 893, 894, 907.
Grant v. Gould, 409. -
Grant v. Shaw, 944.
Grapeshot, The, 428, 911.
Graves v. Colwell, 1143.
Graves v. Deterling, 1017.
Gray v. Barton, 738.
Gray v. Holmes, 673.
Gray v. Jackson, 905.
Gray v. St. John, 865.
Gray v. Schofield, 985, 987, 988.
Great W. M. Co. v. Woodmas, 1031.
Great W. R. Co. v. McComas, 885.
Green v. Biddle, 131, 392.
Green v. Campbell, 678.
Green v. Cräft, 466.
Green v. Gilbert, 793, 844.
Green v. Green, 669.
Green v. Hedenberg, 587, 588.
Green v. Holway, 321.
Green v. Knoch, 812.
Green v. Miller, 550.
Green pay & M. Co. v. Patten Co.,
17.
Green, In re, 427, 783.
Greenwood v. Curtis, 731.
Greenwood v. Freight Co., 393.
Gregg v. Ill. Cent. R. R. Co., 904.
Gregory v. Comstock, 975.
Gregory v. Paul, 666.
Gregory v. Stryker, 893.
Gregory v. Thomas, 882.
Gregory v. Wendell, 783.
Gregory's Estate, In re, 672.
Gridley v. Dole, 842.
Griffin v. Griffin, 1122.
Griffin v. M. Co., 1002.
Griffin v. Rising, 337.
Griffith v. Charlotte & A. R. Co., 683.
Griffith v. Griffith, 656.
Griffiths v. Kellogg, 733.
Grigg v. Arnett, 142.
Griggs v. Selden, 805.
Grignon v. Astor, 1033.
Grimes v. Grimes, 1119, 1126.
Grimes v. Shirk, 974.
Griner’s Case, 408.
Grinnell v. Cook, 893.
Grinnell v. Wells, 679.
Grismer v. L. S. & M. S. R. Co., 901.
Griswold v. Hazard, 721.
Groff v. State Bank, 1019.
Gross v. Washington, 1005.
Grover v. Faurot, 1080.
Groves v. Santell, 1083.
Groves v. Slaughter, 353.
Grube v. St. Paul, 549.
Gruber v. Baker, 800.
Grumon v. Raymond, 621, 1034,
Grymm v. Byrd, 722.
Guano Co. v. Georgia, 958.
Guºan M. L. Co. v. Hogan, 911,
14.
Guffin v. Nat. Bank, 866.
. Guggenheimer v. Lockridge, 1018.
Guilford v. Smith, 877.
Guitig v. People, 714.
Gulf R. R. Co. v. Goldman, 985.
Gulick v. Grover, 808, 810.
Gummon v. Raymond, 528.
Gunn v. Barry, 788.
Gunnarssohn v. Sterling, 551.
Gunning v. Royal, 747.
Gurnee v. Tubbs, 1034.
Gurney v. Atlanta G. W. Ry. Co.,
869, 871.
Gurney v, Tufts, 528.
Gustafson v. State, 702.
Guthat v. Gow, 773.
H.
Haas v. Damon, 813.
Haas v. K. C., Ft. S. & G. R. Co., 900.
Hacker’s Appeal, 737.
FIackett v. Hackett, 682.
Hackett v. Ottawa, 521.
Hafford v. New Bedford, 548.
Hagar v. Reclamation Dist., 336, 1028.
Haggard v. Holmes, 713.
Haggart v. Cutts, 1082.
Hahn v. Beslor, 983.
Hahn v. Louisiana, 1097.
Hair Co. v. Daley, 1124.
Halberg v. Nichol, 804.
Hale v. Finch, 750, 755.
|Hale v. Sheehan, 759.
Hall v. Cole, 1033.
TABLE OF CASES.
XXXV
References are to pages.
De Cuir, 628.
Farmer, 917.
Gavitt, 771.
Hall, 337.
Rlinck, 594,
Tong, 917.
Marston, 796. *
Mayor of Bristol, 470.
Naylor, 873.
Pike, 897.
Sawyer, 807.
Storrs, 894.
Hall v. Sullivan R. R. Co., 595.
Hall v. Tufts, 936.
Hall, Ex parte (Deac.), 564.
Hall, Ex parte (Conn.), 626.
Hallett v. Inlow, 1006.
Hallett v. Parker, 984.
Pſalsted v. Grinnan, 1069.
Hamilton v. Hamilton, 769.
Hamilton v. Hirsch, 983.
Hamilton v. Russell, 881.
Hamilton, In re, 465, 467, 971.
Hamilton College v. Stewart, 747.
Hamlin v. Drummond, 792.
Hamlin v. Sears, 805.
Hamlin, Hale & Co. v. Race, 844.
Hammond v. Hopkins, 1069.
PHampden v. Walsh 785.
Pſampton v. Franklin, 441, 518, 520.
Hanchett v. Kimbark, 866.
Hancock v. Hutchinson, 1080,
|Hancock v. McAvoy, 963.
Hancock v. Rand, 897.
Hancock v. Yaden, 460.
Hancox v. Meeker, 979.
Eſand v. Osgood, 739.
Handley v. Stutz, 577.
Hangen v. Hachmeister, 881.
Hanger v. Abbott, 767.
IHanks v. Baker, 837.
Hann v. National Union, 915.
Hanna v. Granger, 854.
Hannah v. Sheldon, 715.
Hannay v. Smurthwait, 1104, 1105.
Hannel v. Smith, 254.
Hannibal R. Co. v. Swift, 905.
Hanover v. Turner, 659.
Hanº Louisiana, 167, 176, 195, 196,
Hanson v. Vernon, 464,
Haps v. Hewitt, 994.
Hardin v. Boyd, 1118.
Hardin v. Jordan, 369, 1019, 1020,
Harding v. Harlinger, 981.
Harding v. Townshend, 917.
Hargous v. Stone, 870.
Hargrave v. Conroy, 791.
Hargrave v. Lewis, 1105.
Barkness v. Russell, 868, 872.
Harlem Gas Co. v. Mayor, 525.
Harman v. Old Colony Ry. Co., 667.
Harman v. Tappenden, 411. -
FIall V,
Hall v.
FIall V.
Hall V.
EHall v.
Hall v.
Hall V.
Hall v.
Hall V.
Hall v.
Hall v.
FHall V.
|
FIarmon v. Harmon, 726.
Harold v. Jones, 1061.
Harper v. Ely, 1004.
Harrington v. Righ, 739.
Harrington v. Snyder, 893.
Harris v. Cornell, 1104.
Harris v. G. W. Ry. Co., 730.
Harris v. Lester, 1033.
Harris V. Pratt, 877,
Harris v. Tumbridge, 1062.
Harrison v. Brown, 564.
Harrison v. Buswell, 640.
Harrison v. Harrison, 1014.
Harrison v. Nicollett Bank, 950,
Harrison v. Nute, 777.
Harrison v. Weatherby, 1020.
Hart v. Aldridge, 845.
Hart v. Hart, 730.
Hart v. People, 552.
Hart v. Sansom, 1038, 1081, 1082.
Hartford v. N. Pac. Ry. Co., 854.
Hartford & N. H. Ry. Co. v. Jackson,
717.
Hartford Ins. Co. v. Pennell, 917.
Hartford Ins. Co. v. Peoria, 582,
Hartley v. Varner, 739.
Hartman v. Rogers, 759.
Harvey v. Merrill, 783.
Harvey v. Tyler, 1033.
Harwood v. Kiersted, 749.
Hastings v. Montana. U. Ry. Co., 854.
Hatfield v. Sneden, 981.
Hatfield v. Tullerton, 989.
Hausman v. Nye, 875.
Haveland v. Willets, 721, 1021.
Hawes v. Oakland, 594, 1106.
Hawes v. Petroleum Co., 578.
Hawkins v. GOvernor, 273.
Hawksworth v. Hawksworth, 675.
Hawley v. Wolverton, 1112.
Hayden v. Pierce, 983.
Hayes v. Oshkosh, 549.
Hayes v. Taylor, 987.
Hayes v. Ward, 1078.
Hayes v. Westcott, 882.
Haynes v. Aldrich, 991.
Hayward v. Kinney, 979.
Hayward v. Nordberg Mfg. Co., 772.
Hazen v. Boston & M. R. Co., 996.
Hazzard v. New Eng. Ins. Co., 718.
Head v. Head, 663, 672.
Head v. Tattersall, 870.
Head Money Cases, 320.
Heald v. Builders' Ins. Co., 862.
Heald v. Kenworthy, 816.
Heaps v. Dunham, 747.
Heard v. Middlesex Canal Co., 474.
| Heard v. Railway, 627.
Hearne v. Insurance Co., 720.
Hearne v. Marine Ins. Co., 1079.
Hearns v. Waterbury Hospital, 502,
503, 592.
Heath v. Hall, 1003.
xxxvi
TAIBLE OF CASES.
References.are to pages.
IIebbard v. Haughian, 1141.
Heddens v. Younglove, 814.
Hedring v. Wickham, 744.
Heidelberg v. Francois, 525.
Heilbutt v. Hickson, 871.
Iſelena Water Co. v. Steele, 556, 557.
Hellº; v. Chicago & G. T. Ry. Co.,
901.
Heller v. Sedalia, 549.
Heller v. Stremmel, 503, 505.
IHelms v. Elliott, 673.
Hemmenway v. Towner, 672.
Hemphill v. Yerkes, 950, 952.
Fienderson v. Cummings, 804.
Henderson v. Horner, 978.
Henderson v. Palmer, 765.
FIenderson v. Stevenson, 731.
Henderson, etc. v. Mayor of New
York, 340.
Hendler v. Perkins, 889.
Hendrick v. Lindley, 1104.
Hendrick v. Whittenmore, 1032, 1034.
Hendrie v. Kinnear, 939.
Henkle v. Welsh, 871.
Henry v. Anderson, 825.
EIenry v. Root, 710, 712.
Henry Co. v. Drainage Dist., 1070.
Henshaw v. Foster, 935.
Henson v. Henson, 1005.
Hepburn v. Ellzey, 166. ,
Eierman v. Gunter, 931.
Herman v. Roberts, 992.
FIermann v. Port, 1097.
IHerndon v. Imperial Fire Ins. Co.,
477.
Herr v. Denver, etc. Co., 882.
IHerrick v. Garry, 1143.
Herrick v. Lindsay, 797.
Herrington v. State, 1150.
Hersh v. Northern C. Ry. Co., 905.
Hervey v. Moseley, 679.
Hervey v. Rhode Island Loc. Works,
872, 878, 879.
Hester v. Hester, 727.
Hetfield v. Dow, 922.
Hewett v. Dement, 727, 785.
PHewett v. State, 1139.
Hewitt v. Rankin, 831, 832,
Heywood v. Perrin, 729.
Heywood v. Tillson, 845.
Hibbard v. Holloway, 935.
Hibbard & Co. v. Chicago, 553, 555.
|Hickman v. Haynes, 791.
Hicks v. Burhans, 748.
Higgins v. Higgins Soap Co., 827.
Higgins v. Kusterer, 962.
Higgins v. Moore, 807.
Higgins v. Senior, 817.
High v. Plattsburg Ry., 963.
High v. Shoemaker, 283.
Highley v. Deane, 287.
Higman v. Camody, 893.
Higman v. Stewart, 1060.
FIill v.
Hill V.
Hill V.
Hill V,
Hill V.
Hill V.
Bill V.
Hill V.
Hill V.
Hill V.
Hill v.
Atkinson, 466.
Beech, 581.
Boston, 487, 502, 523, 535.
De Rochemont, 980,
Finnigan, 892.
Freeman, 784.
Frost, 740.
Harding, 397.
Hoole, 800.
Lewis, 929, 939.
McCarthy, 1114.
Hill v. Railroad Co., 724,
Hill v. Spear, 926.
Hills v. Smith, 891.
Hillyard v. Crabtree, 844.
Hilton v. Eckersley, 775.
Hime v. Dale, 697.
Himes Brewing Co. v. Flannery, 560.
Hinchman v. Weeks, 873.
Hinckley v. Horazdowsky, 850.
Hind v. Holdship, 745, 746.
Hines v. Mansfield, 369.
Hipp v. Babin, 1071.
Hoar v. Aix, 668.
Hobart v. City of Detroit, 525.
Hobart v. Hobart, 1101.
Hobart v. Ill. Cent. Ry. Co., 1129.
Hochster v. De La Tour, 860.
Hodges v. Steward, 928.
| Hodgkins v. Farrington, 994,
Hodgkinson v. Hodgkinson, 670.
Hoener v. Koch, 1143.
Hoey v. Gilroy, 555.
Hoffman v. Armstrong, 962.
Hoffman v. Cumberland, 1070.
Hoffman v. Hoffman, 659.
Hoffman v. McMullan, 771, 784, 786.
Hoffman St. Coal Co. v. Cum. Coal
Co., 584. -
Hoffmire v. Hoffmire, 658.
Hoge v. Hoge, 999.
Hogg v. Kirby, 700. i
Hogg v. Zanesville, .214.
Hoke v. Henderson, 459.
Holbrook v. Baker, 882.
Holden v. Alton, 778.
Holden v. Hardy, 456, 457, 459, 460,
461. 608, 609, 623, 956, 1026, 1028,
1029.
Holden v. Railroad Co., 857.
Holden v. Taylor, 1015.
Holladay v. Bailey, 983.
Holland v. Challen, 1081.
Hollen v. Davis, 935.
Hollenback v. Todd, 1142.
Holliday v. Am. Mut. Accident
Ass’n, 915.
Hollingsworth v. Virginia, 452.
Hollins v. Brierfield, 1076.
Hollins v. Coal Co., 1077.
Hollinsworth v. Koon, 1142.
Hollister v. Nowlen, 900. -
Holman, Ex parte, 345.
TAIBLE OF CASES.
xxxvii
{
References are to pages.
TIolmes v. Blogg, 711.
Holmes v. Gilman, 911.
Holmes v. Holmes (Abb.), 642.
Bolmes v. Holmes (Ind.), 670.
Holmes v. Preston, 1061.
Biolmes v. Seeley, 281.
Biolmes v. Stummel, 844.
Holmes v. Tenn. C. & I. Ry., 482.
Holroyd v. Marshall, 881.
Holton v. Guinn, 831.
Boltzman v. Millander, 719.
EIolyoke v. Jackson, 985.
Holyoke Co. v. Lyman, 702, 703, 996.
Home Ins. Co. v. Favorite, 730.
|Home Ins. CO. v. New York, 271.
IHome Sav. Bank v. Bierstadt, 1978.
Homer v. Thwing, 710, 892.
IHomes v. Crane, 882.
Homes v. Hale, 725. -
FIomestead Cases, 987.
Hood v. Hood, 663.
Hood v. Inman, 1112, 1113, 1118.
Hood v. Newman, 1089.
Hoole v. Darrah, 845.
Hooper v. California, 344.
|Hooper v. Emery, 522.
Bloosac Min. Co. v. Donant, 804.
IHoover v. Barkhoof, 528.
Hope Ins. Co. v. Boardman, 583.
Hopewell Mills v. Taunton Sav. Bank,
965.
Hopkins v. Beebe, 797.
Hopkins v. Tanqueray, 870.
Hopkins v. United States, 344, 345,
346, 349, 356.
IIorgan v. Pac. Mills, 679.
Born v. Bray, 922.
IHorner v. Fellows, 871.
Horner v. Graves, 776, 777.
Horner v. Harvey, 897.
EIorner v. United States, 414.
|Hosford v. Kanouse, 796.
HOshor v. Kautz, 745.
Płosmer v. People, 451.
Hostetter v. Park, 731.
|Hotchkiss v. Brooks, 986.
Płouck v. Frisbee, 747.
Hough v. Railway Co., 250.
Houghton v. Austin, 447, 449.
Eſoughton v. Houghton, 831.
House of Refuge v. Ryan, 678.
Houston v. Brush, 850.
Houston v. Moore, 408, 440.
Houston, etc. R. R. Co. v. State, 337.
Hovenden v. Annesley, 1068, 1070.
|Hovey v. Elliott, 1027, 1028.
Hovey v. Eppinger, 933.
Hovey v. Hobson, 715.
Howard v. Bank of Carson, 945.
Howard v. Daley, 760, 859, 860.
Howard v. Gossett, 273, 286, 1025.
Howard v. Moot, 1133.
Howard v. San Francisco, 549.
D
Howe Sewing Mach. Co. v.
Howard v. Scott, 1129.
Howard v. Wooster, 549.
Howe v. Flagg, 565.
Howe v. Newmarch, 860.
Howe v. O’Malley, 718. -
Rosen-
still, 793.
Howes v. Chicago, 552.
Howland v. Lounds, 718.
Hoys v. Dickins, 1061.
Hoyt v. Sprague, 686.
Hoyt v. Thompson, 805.
Hoyt v. Tilton, 685.
Hubbard v. Shaw, 980.
Hubbardston Lumber Co. v. Covert,
828.
Hubbell v. Carpenter, 924,
Huber v. Reily, 293.
Huck v. Flentye, 717, 749.
Hudson v. North. Pac. Ry. Co., 902.
Hudson V. Parker, 1093.
Huesing v. City of R. I., 559.
Hughes v. Monroe, 523.
Hughes v. Washington, 813.
Hugunin v. Cochrane,984. . .
Huiskamp v. West, 578. -
Huit v. Brown, 728,
Hulett’s Estate, 1020.
Hull v. Belknap, 871.
Hull v. Hull, 696.
Bull v. Myers, 945.
Hunmiston v. Wheeler, 991, 992.
Humphreys v. McKissock, 585.
Hundley v. Webb, 866, 867.
Hunne well V, Cass Co., 424.
Hunt v. Adams, 1139.
Hunt V. Conrad, 803.
Hunt v. Hollingsworth, 1063.
Hunt v. Hunt, 661, 662. 1087, 1130.
Hunt v. Livermore, 751.
Hunt v. Peake, 710.
Hunt v. Rousmaniere, 720, 721.
Hunt v. Wyman, 870.
Hun; v. Roberts, Thorp & Co., 585,
587.
Hunter v. Walters, 733.
Huntington v. Corporators, 509.
Huntington’v. Parkhurst, 988.
Huntley v. Huntley, 875.
Huntley v. Russell, 980.
Hurtado v. California, 1027.
Husband v. Epling, 935.
Husche v. Sass, 245, 669.
Huse v. Gardner, 216.
Hutchins v. Bank, 840,
Hutchins v. Kimmell, 639, 651.
Hutchins v. Moody, 337. t
Hutchins v. Turner, 839.
Hutchins v. Welden, 784.
Hutchinson v. Dubois, 833, 834.
Hutchinson v. Worthington, 1032.
Hyätt v. Adams, 681.
| Hybart v. Parker, 564,
xxxvili
TABLE OF CASES.
References are to pages.
\{ylton v. United States, 326, 327,
328.
Hynds v. Hays, 765.
Hynes v. McDermott, 639, 648, 652,
Hypes v. Griffen, 938.
I.
Ida Louisa Pierce, In re, 513.
I., D. & S. R. Co. v. Ervin, 784.
I. G. Co. v. Com., 582,
Thk v. Duluth, 550.
Illingsworth v. Burley, 713.
Ill. Cent. Ry. Co. v. Copeland, 905.
Ill. $ºt Ry. Co. v. Frankenberg,
5.
Ill. Cent. Ry. Co. v. Illinois, 369.
Ill. River Packet Co. v. Peoria Bridge
Co., 214.
Ill. jºch Co. v. Ottawa H. Co.,
Ill. Steel Co. v. Schymanowski, 847,
854, 856.
Income Tax Case, 315, 331, 358, 627.
intº B. & W. R. R. Co. v. Koons, 760,
62.
Tnd., T. & T. Ry. Co. v. Swannell, 1084.
Indº at. & Ill. Gas Co. v. Marshall,
55,
Ind. Order, etc. v. Stahl, 687.
Ingersoll v. Sargent, 995.
Ingle v. Jones, 793.
Inglis v. Trustees, 87, 174, iſ 5, 176,
178, 179, 186.
Ingraham v. Baldwin, 715.
Ingraham v. Edwards, 141, 805.
Ingram, In re, 1008.
Inhabitants of Arundel v. McCul-
loch, 282.
Tnland & Seaboard Coasting Co. v.
Tolson, 908.
Inman v. Railway Co., 902.
Insurance Co. v. Bailey, 911.
Insurance Co. v. Gossler, 910.
Insurance Co. v. Judge, 1060.
Insurance Co. v. Morse, 773.
Insurance Co. v. New York, 344.
Insurance Co. v. Norwood, 724.
Insºce Co. of N. A. v. Garland,
5.
intºte C. C. v. Ala. Mid. R. Co.,
Interstate C. C. v. Brimson, 366, 1027,
1030, 1036.
Interstate C. C. v. Detroit, G. H. &.
M. R. Co., 904, -
Iowa v. McGregor, 458. -
Iowa Cent. Ry. Co. v. Iowa, 1029.
Iron Mt. Ry. Co. v. Knight, 900,
Irvine v. Irvine, 712. -
Irvine v. Marshall, 233.
Irvine v. Watson, 816,
Irwin v. Dyke, 742.
Irwin v. Williar, 781, 783.
Isom v. Johns, 797.
J.
Akron, etc. Co., 778.
Beekman, 982.
Cleveland, 761.
Cunningham, 884.
Frost, 235, 965.
GOOdell, 235.
Hart well, 268.
Ring, 710, 714.
Lynch, 1069, 1070.
People, 1150.
Phillip, 533.
Pintard, 601.
Pleasonton. 811.
R. & B. R. R., 996.
Van Hoesen, 979.
Jackson v. Warford, 1144.
Jackson v. Winne, 644, 651.
Jackson Iron Co. v. Negaunee Co.
740. -
Jacobs, In re, 459.
Jacoby v. Dist. Co., 986.
James v. Allen Co., 859.
Jamieson v. Wallace; 783.
Jane v. Jane, 691.
Jansen v. Ostrander, 268, 269, 270.
Jarrould v. Houlston, 697.
Jefferson v. Asch, 795.
Jeffries v. Boosey, 697.
Jeffries v. Fitchburg R. Co., 877.
Jeffries v. Robbins, 1060.
Jele v. Lemberger, 603.
Jenkins v. Bisbee, 663.
Jenkins v. Int. Bank, 1069.
Jenkins v. Jenks, 983.
Jenkins v. Robinson, 1080.
Jenkins v. Tucker, 748.
Jennings v. Railroad Co., 903.
Jennings, Ex parte, 471.
Jernee v. Simonson, 823.
Jesse V. State, I150.
Jesson v. Wright, 1000, 1011, 1012,
1014.
Jewelers’ M. Agency v. Jewelers’
Pub. Co., 697.
Jewett v. Iowa, Land Co., 1122.
Jewett v. New Haven, 549.
Joest v. Williams, 716.
Johns v. Fretchey, 716.
Johns v. Norris, 1069.
Johnson v. Ackless, 745.
Johnson v. Allerwein Univ., 747.
Johnson v. Bank, 934. -
Johnson v. Christian, 805.
Johnson v. Clark, 943. -
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
Jackson v.
TABLE OF CASES.
XXXix
References are to pages.
Johnson v. Cushing, 1000.
Johnson v. Duncan, 412,
Johnson v. Fall, 782.
Johnson v. Filkington, 864.
Johnson v. Gibson, 1081.
Johnson v. Grisard, 882,
Johnson v. Harmon, 1128,
Johnson v. Hilton, 769.
Johnson v. Hunt, 769.
Johnson v. Jackson, 481.
Johnson v. James, 428.
Johnson v. Johnson (Ill.). 652.
Johnson v. Johnson (N. Y.), 658.
Johnson v. Jones et al., 257, 402, 409,
433, 434, 516.
Johnson v. McIntosh, 54, 56, 164, 318,
325, 520, 601, 959,
Johnson v. Milwaukee & W. Inv.
Co., 584, 808, 809, 811.
Johnson v. Mitchell, 939.
Johnson v. Northwestern Mut. Life
Ins. Co., 712.
Johnson v. Price, 1053.
Johnson v. Rankin, 1106.
Johnson v. Sayre, 257, 408, 409.
J ohº v. Schooner McDonough,
94.
Johnson v. State, 677.
Johnson v. Van Wyck, 769.
Johnson v. Wingfield, 834.
Joliet & M. Co. v. Dice, 699.
Joliet Iron Co. v. Scioto F. B. Co.,
888, 891.
Jones v. AEtna Ins. Co., 815.
Jones v. Barkley, 752.
Jones v. Burnham, 746.
Jones v. Cary, 696.
Jones v. Darnell, 676.
Jones v. Dunton, 760, 859.
Jones v. Dutton, 756.
Jones v. Greaves, 1143.
Jones v. Jones, 661.
Jones v. Jones, 257.
Jones v. McNicoll, 671.
Jones v. Nellis, 930, 934.
Jones v. Perry, 273.
Jones v. Railway Co., 856.
Jones v. Rice, 772.
Jones v. Tevis, 679.
Jones v. United States, 793.
Jones v. Waddy, 987.
Jones v. Williams, 998.
Jordan v. Clark, 662.
Jordan v. Gray, 1104.
Jordan v. James, 876.
Joselyn v. Laciere, 745.
Joseph v. Struller, 875.
Juilliard v. Chaffee, 729, 730, 1138.
J uilliºn v. Greenman, 372, 376, 378,
379.
Juniata Line Co. v. Fogley, 620.
Justices v. Murray, 1035.
Justus v. Lang, 706.
v. rºar ~ *
o
d
K.
Rahn v. Smelting Co., 562.
Kain v. Smith, 855.
Falkhoff v. Nelson, 860.
Kallenbach v. Dickinson, 249.
Kane v. Bloodgood, 1083.
Karr Supply Co. v. Kroenig, 848, 856.
Kathreiner v. Kneipp Co., 700.
Rayser v. Hall, 940.
Rearney v. Jeffries, 1088.
Reech v. Sanford, 811, 817.
Reegan v. Geraghty, 673.
Keegan v. Kinnare, 989, 991.
PCeeler v. Clifford, 761, 762,
Reeler v. Salisbury, 805.
Reeler v. Taylor. 777.
Keene v. Perry, 482.
|Keene v. Wheatley, 697.
Reener v. Finger. 1109, 1111, 1112.
Reighler v. Savage Mfg. Co., 813.
Reigwin v. Comm., 1087.
Keir v. Leeman, 772.
Keith v. Clark, 169.
ICeith v. Henkleman, 1047, 1071.
Keith v. Herschberg Opt. Co., 808.
Reith v. Maffit, 1139.
Kellett v. Shepherd, 983.
Kelley v. Hemingway, 936.
Rellogg v. Curtiss, 931.
Kellogg v. Lovely, 696.
Kellogg v. Sweeney, 897.
Relly v. Bliss, 790.
Relsea v. Ramsey Mfg. Co., 869, 875.
Remmler, Ex parte, 1150. -
Kempe’s Lessee v. Kennedy, 1033.
Kempton v. Burgess, 1126.
Kendall v. Stockton & Stokes, 432.
Kendall v. United States, 1033.
Rennedy v. Roberts, 726.
FCennedy v. Ross, 730.
Rennedy v. Shea, 680.
Rennett v. Chambers, 784. *
Kenneweg v. Schilansky, 829.
Rent v. Quicksilver Min. Co., 575.
Rent Co. v. Wilson, 576. -
ICenton v. Ratcliff, 866.
Rentucky v. Denison, 207, 1093.
ICenyon v. Shreck, 1003.
Renyon v. Stewart, 451.
Kerfoot v. Hyman, 812.
Rerfoot v. People, 1108.
Rern v. Chicago Brewing Ass'n, 576.
Ker; Estate, In re, 734, 736, 737,
3.
Kerr v. Kerr, 659.
Kerr, In re, 470,
Rerrich v. Bransby, 1084.
Rerwhacker v. C., C. & C. R. Co., 1026.
Retcham v. Depew, 1058.
FCetchum v. Duncan, 864.
Rettle v. Harvey, 761.
Key v. Vattier, 1031, 1032.
xl
TABLE OF CASES.
References are to pages.
Kidd'v. Hovey, 1086.
Kidney v. Stoddard, 722.
Ries v. City of Erie, 549.
Kilburn v. Sunderland, 1066, 1071,
1107.
Rimball v. Hildreth, 890, 907.
IGimball v. Rutland, etc. Ry. Co., 902.
Yimball, In re, 660, 1037.
Kimberly v. Arms. 1129.
Rincaid v. United States, 233.
JKincaid's Estate, In re, 687.
Fincheloe v. Priest, 907.
Rinder v. Brink, McCormick & Co.,
717.
ICing v. Amory, 543.
Ring v. Baldwin, 920.
Bryant, 1128.
Bushnell, 984. &
City of Rochester, 864.
Greenhill, 676.
London, 498.
Miller, 980.
Stetson, 984.
Thompson, 743.
Ring v. Whitely, 797.
King v. Winants, 786.
Ring, The, v. Capper, 125.
IQing, The, v. Passmore, 499.
IQingman & Co. v. Denison, 877.
ICingsland v, Koeppe, 939.
Kingsley v. Davis, 815.
JKirby v. Schoonmaker, 832.
Kirby v. Tallmadge, 1144.
Rirby v. Western Union Tel. Co.,899.
l{irkfield v. Mt. View Cem., 683.
Rirkham v. Mather, 740.
Rirkpatrick v. Taylor, 743.
ICirtland v. Montgomery, 899.
Ritchell v. Burgwin, 987.
Ritchen v. Spear, 877.
Rºlein, In re, 394.
Klever v. Seawall, 1087.
Knapp v. Bailey, 1019.
Knapp v. Curtis, 895.
Knapp v. Simon, 816.
£nerr v. Hoffman, 833.
Enight v. Ind. Coal & I. Co., 962.
Knight v. Jones, 935.
Rºnight v. Knight, 1009.
Enote v. United States, 431.
I(nowing v. Manley, 667.
FCnowles v. Muller, 696.
R nowlton v. Congress, 785.
Knox v. Exchange Bank, 393.
#Koehler v. Hill, 192, 197, 202, 483.
TCOehler v. Iowa, 446.
Kohl v. Lyman, 883.
JKohl v. United States, 470, 474.
Rohn v. Fandel, 761.
IRohn v. Richmond, etc. R. R. Co.,
904. -
Konvalinka v. Schlegel, 985.
FCopp v. Reiter, 741. -
King v.
King v.
King v.
JKing v.
JKing v.
|Ring v.
King v.
Ring v.
l
Kotz v. Belz, 1005.
Kramer v. Old, 745.
FCratz v. Mousinger, 1078.
Eribbs v. Alford, 881.
Kring v. Missouri, 1131, 1150.
Kroessin v. Keller, 670.
Kruschke v. Stefan, 832.
Kunºheimer v. Wortheimer, 868,
869.
Kurtz v. Gokey, 777.
L.
Lachman v. Block, 924.
Laclede v. Shuler, 950,
Lacy v. Brown, 931.
Ladd v. New Bedford R. Co., 848.
Tadd v. Robinson, 989.
Lafayette v. James, 923.
Lafitte v. N. O., C. & L. R. Co., 860.
Lake v. Tyree, 1015, 1016.
Lake Shore & M. S. Ry. Co. v. Bode-
mer, 909.
Lalor v. C., B. & Q. Ry. Co., 851, 855.
Lamb v. Cain, 593. &
Lamb v. Cunningham, 485.
Tamb v. Mason, 986.
Lamb v. Western R. Co., 895.
Tamkin v. Knapp, 663.
Lam ºrigh v. Brathwait, 744, 745,
747.
Lampleigh v. Lampleigh, 998.
Lamprey v. State, 1020.
Lamson v. Beard, 784.
Lanark v. Dougherty, 255, 1027.
Lanaux’s Succession, In re, 890,
Land Co. v. Peck, 1106.
Landa v. Tattin, 936.
Lane v. Lane, 916.
Lane v. Sharp. 728.
Lane v. Town of Hancock, 528.
Tane, In re, 231.
Lane County v. Oregon, 164.
Lang v. Werk, 775.
Langdon v. People, 623.
Langford v. Monteith, 231.
Langham v. Bewett, 666.
Langley v. Sturtevant, 813.
Lansdown v. Lansdown, 721.
Lansing v. Smith, 471.
Lansing v. State, 471.
Lantry v. Lantry, 997, 998, 1000.
Lantry v. Park, 761.
Lapeyre v. United States, 431.
La Plaisance v. Monroe, 214.
Laramie Co. v. Albany Co., 545.
Larkin v. Hardenbrook, 790.
Larkin v. Parmalee, 863.
Larkins v. Hecksher, 760.
Larmon v. Knight, 999.
Larned v. Andrews, 766.
Larrabee v. Lewis, 700.
TABLE OF CASES.
W
^:
References are to pages.
Larsen v. Jenson, 739.
Larson v. Chase, 681, 683.
Laubach v. Omerd, 1093.
Launtz v. People, 550.
Laurence v. Laurence, 635, 644, 654.
Lavalle v. People, 1094.
Lavery v. Crooke, 680.
Lavery v. Phillips, 666.
Lawrence v. Brown, 985.
Lawrence v. Dana, 697. t
Lawrence v. Fox, 794, 795, 796, 797,
798, 799, 950.
Lawrence v. Ingersol, 550.
Lawrence v. McCalmont, 745.
Lawrence v. Maxwell, 891.
Lawrence v. Schmidt, 941.
Lawrence v. Simmons, 713.
Lawrence v. Tr. Leake & Watts
Orphan House, 841.
Lawrence v. Wynn, 564.
Lawson v. Funk, 867.
Lawyer v. Fritcher, 680.
Layman v. Conroy, 727.
Leach v. Nichols, 725, 733, 933,
Leadbitter v. Farrow, 938.
Leake v. King, 988.
Leask v. Scott, 878.
Leaº Cloth Co. v. Am. T. Cl. Co.,
Leaver v. Morse, 758.
Le Clef v. Concordia, 549.
Ledwith v. Jacksonville, 1120.
Lee v. Kimball, 877, 878.
Leech v. People, 530.
Leeper v. Texas, 1029.
Legal Tender Cases, 274, 300, 301, 312,
313, 377, 380, 948.
Teggett v. Sands, 746.
Lehigh, M. & M. Co. v. Kelley, i100.
Leisy v. Hardin, 340, 350, 352,458.
Leloup v. Mobile, 344.
Lembeck v. Nye, 1019.
Leneveve v. Leneveve, 1019.
Lennon v. Goodspeed, 938.
Lenox v. Prout, 939.
Leon v. Goldschmidt, 873.
Teonard v. Barnard, 686.
Leonard v. Bates, 738.
Leonard v. Davis, 866. -
Leopold v. Salkey, 756, 759, 844.
Lerch v. Gallup, 739.
Leroux v. Brown, 742.
Lessee of Canby v. Porter, 982.
Lessees of Lindsay v. Coats, 1009.
Lester v. Berkowitz, 1130.
Lester v. Palmer, 746.
Tester v. Stevens, 1127.
Letcher v. Norton, 882.
Levy v. M’Cartee, 602.
Levy v. Superior Court, 1140.
Lewis v. Chapman, 1117.
Lewis v. Hitchcock, 896.
Lewis v. Hubbard, 871.
Lewis v. Hyman, 962.
Lewis v. Lyman, 862.
Lewis v. Moffett, 837.
Lewis v. Mott, 892.
Lewis V. N. Y. P. C. Co., 898.
Lewis v. Palmer, 924.
Lewis’ Appeal, 1109.
Libby, McN. Co. v. Scherman, 1142.
License Cases, 350.
Lickbarrow v. Mason, 937.
Liddard v. Kain, 870.
Lies v. De Diablar, 986.
Light v. Countrymen's Mut. Fire Ins.
Co., 911.
Lilley v. Rankin, 764.
Lillibridge v. Lack. Coal Co., 962.
Lillienthal v. Ballou, 867.
Limerick v. Turnpike Co., 993.
Linauder v. Longstaff, 987.
Lincoln v. Boston, 554.
Lincoln v. Buckmaster, 716.
Lincoln v. Hapgood, 528.
Lincoln Co. v. Prince, 570.
Linder v. Seaver, 677.
Lindley v. First Nat. Bank, 943.
Lindo v. Belisario, 645.
Lindsay v. Commissioners, 468.
Lindsey v. Lighton, 988.
Linington v. Strong, 733.
Linton v. Hurley, 1104.
Litch v. Clinch, 1107, 1121.
Little v. Bailey, 937.
Little v. Barreme, 434.
Little v. Cooper, 1088.
Little v. Gallus, 844. --- -
Litº Rock & Ft. S. R. Co. v. Page,
Little Rock & M. R. Co. v. Barry,
857.
Littlewood v. Mayor, 68i.
Liverpool v. Wright, 771.
Liverpool Ins. Co. v. Massachusetts,
564, 566, 569, -
Liverpool Steamship Co. v. Phenix
Ins. Co., 899, 900, 902.
Livingston v. Hammond, 667.
Livingston v. Jefferson, 432.
Livingston v. Lynch, 550, 562, 564,
565, 568, 573, 574, 576, 580, 821,829.
Livingston v. Moore, 156, 280, 1028,
1038, 1041, 1042, 1046.
Livingston v. Roosevelt, 824.
Loaby v. Redmond, 1070, 1120.
Loach v. Farnum, 790.
Loaiza v. Supreme Court, 707.
Loan Ass’n v. Topeka, 193, 317,463,
464, 465. . .
Lobdell v. Lobdell, 742.
Locke v. Williamson, 871.
Lockwood v. Moffett, 1008.
Loeb v. McMahon, 987.
Loeschigk v. Bridge, 865, 874.
Logansport v. Uhl, 1060.
xlii
TABLE OF CASES.
References are to pages.
London Wharf Cases, 468.
Long v. Hess, 664.
'Long v. Long, 655.
Long v. Pa. R. R. Co., 900.
Long v. Toul, 775.” -
Longººd v. Coombs, etc. Com. Co.,
716. 4-
Longyear v. Minn. L. Co., 1060.
Loomis v. Eagle Ins. Co., 912.
Loomis v. Ruck, 930.
Lord v. Edwards, 866; 869.
Loring v. Hildreth, 1030, 1106.
Lothrop v. Ide, 33.
Lott v. Wykoff, 974.
Loud v. Pomona Land, etc. Co., 753.
Lough v. Outerbridge, 900.
Toughborough v. Blake, 320.
Loughborough v. McNevin, 891, 892.
Louis v. Sawyer, 797.
Louis v. Snellie, 848.
Louisiana v. New Orleans, 134, 708.
Touisiana v. St. Martin’s Parish, 788,
L., L. & G. R. Co. v. Maris, 904.
L., N. O. & T. Ry. Co. v. State, 628.
L. S. & M. S. R. Co. v. Stupak, 849.
Louisville v. University, 503.
Louisville Asphalt, etc. Co. v. Lorick,
741.
Louiºle. etc. Ry. Co. v. Fulghan,
0
900.
Louisville, etc. Ry. Co. v. L. T. Co.,
932, 934.
Louisville Ry. Co. v. Leston, 583.
Love v. Clune, 917.
Love v. Harvey, 781.
Love v. Moyneham, 666.
Lovering v. Stuart, 985.
Low v. Martin, 896.
Low v. Rees Printing Co., 460.
Lowe v. Blum, 792.
Lowe v. Peers, 769.
Howell v. B. & L. Ry. Co., 1078.
Lowery v. People, 645.
Lubbock v. McMann, 986.
Lucas v. Brooks, 1135.
Lucas v. Campbell, 868,
Tucas v. Lucas, 981.
Ludeke v. Sutherland, 729.
Iludington v. Bell, 792.
Ludlum v. Rothschild, 881.
Luigart v. Ripley, 1002.
Luke v. Lyle, 248, 926.
Lukins v. Aird, 867.
Luliº }. Atlantic Mut. Ins. Co., i106,
107.
Tumley v. Gye, 845.
Lumley v. Wagner, 1079.
Luppie v. Winnans, 685.
Luther v. Borden, 34, 50, 154, 182, 184,
185, 192, 197, 198, 257, 412,429, 453,
488, 512, 607, 967, 1027.
Lutz v. Kelly, 1037.
Luyties v. Hollender, 701.
Lyle v. Richards, 64, 99, 243,972, 975,
1008, 1052.
Lynch v. Bank, 951.
Lynch v. Johnson, 712.
Lynd v. Noble, 1095.
Lyne v. Culbertson, 783.
Lynn v. Lynn, 1087.
Lyon v. Alley, 337. -
Lyon v. Fishmonger Co., 695.
Lyon v. Turner, 369.
M.
McAfee v. Busby, 867.
McAndrew v. Bassett, 700.
McArtee v. Engart, 746.
McArthur v. Franklin, 984, 985.
McArthur V. Howett, 891.
McArthur v. Scott, 1022, 1030, 1036,
1085, 1104. -
McArthur v. Sears, 757.
McCalla v. Bare, 1018.
McCall’s Case, 408.
McCarthy v. Louisville, etc. R. R. Co.,
900, 901.
McCarthy v. Metropolitan Board of
Works, 470.
McCarthy v. Niskern, 908.
McCartney v. Ridgeway, 920.
McClintock v. Helberg, 1082.
McClung v. Dearborne, 860.
McClurg v. Merry, 652.
McConahey v. Griffey, 740.
McConnell v. Brillhart, 718, 741.
McConnell v. East P. L. Co., 818, 1104.
McConnell v. Prov. Sav. & L. Ass'n,
1064.
McCormick v. Flaherty, 1127.
McCormick H. Mach. Co. v. Miller,
726.
McCormick v. Pratt, 156.
McCormick v. Sullivant, 1033.
McCortle v. Balls, 771.
McCoy v. Hoffman, 709.
McCoy v. Lassiter, 880.
McCracken v. Hayward, 92, 394, 789.
McCrea, v. Purmont, 730, 1139.
McCready v. Virginia, 701,
McCulloch v. Maryland, 167, 188,217,
224, 301, 303, 304, 305, 306, 310,
321, 340, 372, 373, 374, 377, 436,
462, 487, 493, 499, 566, 705, 809,
948.
McCullough v. Insurance Co., 719.
McDaniel V. Cornwell, 666.
McDaniels v. Robinson, 897.
McDonald v. City of New York, 525.
McDonald v. Hospital, 523.
McDonald v. Montague, 844.
McDonough v. Great Northern Ry.
Co., 854.
McDuffee v. Railway Co., 900.
TABLE OF CASES.
xliii
References are to pages.
IMcElfresh v. Kirkendall, 667.
McElheny v. Musick, 686.
McElligott v. Randolph, 855.
IMcElvaine v. Brush, 616.
McGee v. Holland, 679.
McGhee v. Alexander, 1087.
McGinn v. Tobey, 733.
McGowan v. Hitt, 664.
JMcGrath v. Robinson, 666.
McGraw, In re, 974.
McHale v. Easton & B. Tr. Co., 554.
McIntire v. Pryor, 1069, 1070.
McIntyre v. People, 1138.
McIntyre v. Union College, 1088.
McKamie v. Baskerville, 671.
McKay v. City of Buffalo, 548.
McKay v. Hyde Park, 1010.
McKee v. Judd, 801, 802, 1104.
TMcKee's Lessee v. Pfout, 983.
McKenna v. McKenna, 643.
McKenna v. St. Louis, 549.
McKenzie v. McKenzie, 1080,
McKinley v. Watson, 747.
McKinnon v. Penson, 487.
McLean v. McLean, 1071.
McLean Co. v. Humphrey, 678.
McLeer v. United States, 699.
McLemore v. La. St. Bank, 907.
McLeran v. Benton, 990.
Mesºon v. C., D. & V. Ry. Co.,
1129.
McMasters v. Railroad Co., 904.
lMcMillan v. Ames, 738.
McMillan v. Bull's Head Bank, 919.
McMillan v. McNeal, 92.
McMillan v. Malloy, 757,759, 760, 761.
lMcMillan v. M. S. R. R. Co., 902,
McMorris v. Herndon, 748.
McMurray v. Rawson, 1075, 1076.
McNeil v. Reid, 786.
McNulta v. Corn Belt Bank, 574, 575.
McPherson v. Blacker, 427.
lMcPherson v. Cox, 1031.
McPherson v. Cunliff, 1033.
McPherson v. Foster, 559.
McQuillen v. Hatton, 472.
McRoberts v. Lockwood, 1087.
McTeer v. Huntsman, 868.
McVey v. McQuality, 1121.
TMcWhorter v. McMahón. 806.
MacElree v. Wolfensberger, 740.
MacGill v. McEvoy, 687.
Macken v. Alaska Ref. Co., 849.
Mackey v. Briggs, 814.
Mackey v. Coxe, 601.
Mackey v. Thisler, 740.
Mackintosh v. Trotter, 964,
Macklier v. Frith, 719.
Macknet v. Macknet, 685.
Maclay v. Harvey, 718, 719.
Macomber v. Parker, 890.
Maddux v. Bevan, 804.
2Magee v. Pac. Imp. Co., 897.
Mager v. Grima, 465.
Maghee v. Railroad Co., 903.
Magnin v. Dinsmore, 902.
Magoun v. Ill. T. & S. Bank, 465,466,
620, 624, 1008.
Magovern v. Robertson, 828,
Maguire v. Thompson, 744.
Mahan v. Smitherman, 1061.
Mahler v. Transportation Co., 369.
Mainwaring v. Giles, 962.
Malins v. Munroe, 742,
Mallan v. May, 775, 777.
Malli v. Willett, 772.
Mallory v. Gillett, 921.
Mallory v. Russell, 563.
Maloure v. Brown, 797.
Malº . American Exp. Co., 500, 569,
583.
Manºpaum v. MacDonald, 769, 973,
75.
Mandeville v. Riddle, 929, 930.
Manhattan Co. v. Wood, 701.
Mann v. Everston, 870.
Mann v. Print Works, 855.
Mann v. Smyzer, 730.
Manning v. Manning, 1054,
Mannix v. Purcell, 1083.
Manry v. Waxelbaum Co., 919, 920.
Manufacturers & Mer. Bank v. Win-
ship, 827.
Manufacturing Co. v. Bank, 578.
Manufacturing Co. v. Lindblom, 1080.
Maple v. Railway Co., 815. -
Maples v. Milan, 964.
Marberger v. Potts, 919.
Marbury v. Madison, 156, 162, 168, 174,
183, 200, 201, 240,279,286, 288.430,
432, 433, 1027, 1035, 1093, 1099.
March v. Railway Co., 573, 574, 575,
576, 580, 585.
Marcy v. Taylor, 1010.
Mareau v. Langley, 780.
Marfield v. Goodhue, 898.
Margolius v. State of Ohio, 491.
Marine Bank v. Fulton Bank, 813.
Marine Bank v. Ogden, 824.
Markham v. Brown, 896.
Markover v. Krauss, 673.
Marks v. Van Eeghen, 860.
Marlett v. Wilson, 674,
Marsellis v. Thalhimer, 981.
Marsh v. Chown, 932.
Marsh v. Colby, 703.
Marsh v. Gold, 838.
Marsh's Appeal, 837.
Marshall v. Holmes, 1080.
Marshall v. Railroad Co., 772.
Marshall’s Case, 411.
IMarston v. Bigelow, 794, 795, 796, 799.
Martin v. Fitzgibbon, 665.
Martin v. Hunter, 200, 242, 262, 303,
305.
Martin v. Jordan, 722,
xliv
TATBLE OF CASES.
Mentz. v. New witter, 741.
Mercein v. People, 676.
Mercer's Lessees v. Selden, 982.
Merchants’ Bank v. Penna, 466.
Merchants’ Dis. & T. Co. v. Furth-
mann, 731.
Merchants’ Dis. Co. v. Smith, 895, 900,
903.
Merchants’ Dis. Tran. Co. v. Kohn,
900, 903.
Merchants’ & F. Bank v. Seitz, 951.
Merchants’ Nat. Bank v. Bangs, 864.
Merchants' S., L. & T. Co. v. Good-
rich, 780.
Merriam V. Field, 728.
Merriam’s Estate, In re, 466.
Merrick v. Gordon, 827.
Merrick v. Van Santvoord, 581, 582,
954,
Merrill v. Grinnell, 802, 902, 906.
Merrill v. Kenyon, 815.
Merrill v. Monticello, 521, 546.
Merrill v. Sherburne, 275, 278, 440,
1027.
References are to pages.
Marshall, 1042,
Mott, 401, 407, 408, 410.
Murphy, 777.
Riddle, 993.
Robson, 667, 668.
Stubbings, 911, 914, 916.
Teague, 727.
Traill, 982.
Martin v. Waddell, 56, 701, 702.
Martin v. Ward, 1077.
Martinetti v. McGuire, 697.
Mason v. Haile, 392.
Mashºusetts M. L. Co. v. Kellogg,
110
Massey v. Heiskell, 1069.
Massie v. Watts, 1079, 1082.
Master v. Miller, 285, 799,802, 930, 942,
1028.
Mathews v. Cowan, 710.
Matteson v. Moulton, 942.
Matthew v. Wallwyn, 1003.
Matthews v. Burdett, 179, 181.
Matthiessen v. McMahon, 716.
Maxey Mfg. Co. v. Burnham, 815.
Maximilian v. Mayor, 548.
May v. Burdett, 696.
May v. Le Claire, 138,811, 817.
Mayº v. So. Car. Ry. Co., 895, 898,
00.
Maybury v. Brien, 984,
Mayer v. Moore, 811.
Maynard v. Hill, 636,656.
Maynard v. Maynard, 722.
Mayor v. Dean, 1095.
Mayor v. Hart, 56.
Mayor v. Ray, 560.
Mayor v. Seaber, 499.
Mayor v. Stout, 919.
Mead v. Bunn, 724, 890.
Mead v. New Haven, 548.
Meade v. Albany M. Bank, 952.
Meadowcroft v. County, 968.
Meadows v. Pac. Mut, Life Ins. Co.,
915.
Meagher v. Driscoll, 682.
Mechanics’ Bank v. Bank of C., 937.
Mechanics' Bank v. Levy, 1089, 1112.
Mechanics Bank v. N. Y. & N. H. R.
R. Co., 802, 808.
Medbury v. Watrous, 709.
Mee v. McNider, 869.
Meehan v. Valentine, 823, 825.
Meek v. Pearce, 1034.
Meeske v. Pfenning’s Estate, 925.
Mehroff V. Mehroff, 670.
Meister v. Moore, 644.
Melendy v. Keen, 1003.
Mellen v. Whipple, 796.
Memphis Ry. Co. v. Com., 562, 595.
Menacho v. Ward, 904,
Mendenhall v. Benbow, 825.
Menendez v. Holt, 842.
Menk v. Home Ins. Co., 915,
1Martin v.
|Martin v.
Martin v.
Martin V.
Martin v.
Martin ºv.
Martin v.
Martin v.
| Merritt v. Bartholick, 891.
Mersey Co. v. Naylor, 761, 762.
Messerman v. New York Shot Co.,
728, 871.
Messmore v. Williamson, 956, 975.
Methorn v. R. T. L. Co., 251.
Metºpºlitan Bank v. Campbell Co.,
1
Metropolitan Bank v. Van Dyck, 376,
378
Metropolitan City Ry. Co. v. Chicago
W. D. Ry. Co., 127.
Metropolitan El. Ry. Co. v. Johnson,
1058.
Metropolitan Nat. Bank v. Jones,
950, 951, 952.
Mettler v. Miller, 982, 985.
Metz v. California, etc. R. R. Co., 906.
Meyer v. Devries, 1086.
Meyer v. Graham, 965.
Meyers v. Richards, 934, 939, 940.
Meyers v. Schemp, 740.
Meyers v. Smith, 1080.
Mich. Cent. Ry. Co. v. Hale, 902.
Micº Cent. Ry. Co. v. Phillips, 863,
65. *
Micºte. R. R. Co. v. McDonough,
1.
Mich. Trust Co. v. Chapin, 669, 828.
Michoud v. Girod, 589, 708, 813, 1068.
Middleton v. Crofts, 179, 181, 257.
Miles v. Fisher, 984,
Miles v. Rose, 369.
Miles v. Schmidt, 773.
Miles v. United States, 629,
Miles v. Wheeler, 813,
Mill Dam F. v. Hovey, 751, 753, 754,
755, 756, 757, 759.
Millar v. Taylor, 97,697, 968.
TA BLE OF CASES.
XIV.
References are to pages.
Miller v. Am. Mut. Ass. Ins. Co., 559.
Miller v. Bealer, 1062.
Miller v. Davidson, 1121.
Miller v. Ewers, 582, 583.
Miller v. Germania Ins. Co., 915.
Miller v. Hawker, 747.
Miller v. Joseph, 1100.
Miller v. Larned, 933.
Miller v. Pancoast, 867.
Miller v. Race, 930, 934, 937.
Miller v. State, 481.
Miller v. Stewart, 924.
Miller v. Tollison, 666.
Miller v. Trustees of Schools, 1095.
Miller v. White, 873.
Milligan, Ex parte, 51, 200, 257, 282,
402, 409, 412, 428, 616, 1095, 1150.
Millington v. Fox, 700.
Mills v. Cent. R. R. Co., 579.
Mills v. Martin, 408.
Mills v. St. Clair Co., 701.
Mills v. United States Bank, 731, 732.
Miner v. Belle & I. Co., 587.
Miners’ Ditch Co. v. Zellerbach, 507,
561.
Mines, Case of the, 1039.
Minnesota v. Sibley, 912.
Minn. Co. v. St. Paul Co., 963,
Minn. Title & Tr. Co. v. Drexel, 912.
Minor v. Happersett, 624, 625.
Minot v. Taylor, 1085.
Minot v. Winthrop, 466.
Mississippi v. Johnson, 162, 271, 432.
Missouri v. Lewis, 623.
Mo., K. & Tex. Ry. Co. v. Haber, 430,
458.
Mo. Pac. Ry. Co. v. Fagan, 902.
Mo. Pac. Ry. Co. v. Heidenheimer,
904.
Mo. Pac. Ry. Co. v. Musser-Sauntrey
Co., 971.
Mo, Pac. Ry. Co. v. Nevill, 903.
M. & L. R. Ry. Co. v. Com., 499, 501.
M. & O. Ry. Co. v. Massey, 852,
Mitchell v. Beck, 814.
Mitchell v. Dougherty, 773.
Mitchell v. Harmony, 434.
Mitchell v. Ill. R. R. Co., 474.
Mitchell v. Lyman, 749.
Mitchell v. Mitchell, 727.
Mitchell v. Reynolds, 776.
Mitchell v. Scott, 859.
Mitchell v. Winslow, 881.
Mitchinson v..Hewson, 736,
Mobile v. Kimball, 547.
Mobile & M. R. Co. v. Jurey, 728, 917.
Mobile & O. R. Co. v. Dismukes, 785.
|Moffatt v. Van Doren, 890.
Moffitt v. Asherville, 502, 549.
Moºlsteamship Co. v. McGregor,
Mohr v. Manierre, 1030.
Mohr v. Tulip, 1030,
Mollwo, March & Co. v. Court of
Wards, 836.
Molson Bank v. Howard, 943.
Mon. Nat. Bank v. Globe Works, 933.
Monk v. Harper, 1076.
Monmouth Mfg. Co. v. Erling, 848,
850.
Monongahela Nav. Co. v. United
States, 370, 475.
Monson v. Bragdon, 791.
Mont. v. Brush, 1136.
Mont. Furn. Co. v. Hardaway, 584.
Montelius v. Charles, 941.
Montgomery v. Evans, 889.
Montgomery v. Forbes, 581.
Montoya De Antonio v. Miller, 687.
Moore v. Allen, 688.
Moore v. Bennett, 778.
Moore v. Copp, 722.
Moore v. Davis, 745.
Moore v. Granby Min. etc. Co., 816.
Moore v. House, 795.
Moore v. Long Beach D. Co., 897, 898.
Moore v. Mandelbaum, 812.
Moore v. Mason, 748.
Moore v. Moore, 686.
Moore v. Sanborne, 702.
Moore v. Thompson, 925.
Moore v. United States, 252.
Moore v. Wood, 866.
Moorhouse v. Cooke, 685.
Moran v. Prather, 731.
Morehouse v. Comstock, 871.
Morehouse v. Morehouse, 657.
Morgan v. Andrews, 845.
IMorgan v. Bowman, 847.
Morgan v. Congdon, 893.
Morgan v. Farrel, 837.
Morgan v. Kennedy, 667, 668.
Morgan v. King, 471, 702.
Morgan v. Marquis, 830.
Morgan v. Martin, 669.
Morgan v. Pettit, 782.
Morgan's, etc. Co. v. Shinn, 881.
Morgantown Mfg. Co. v. Ohio, etc.
Ry. Co., 902.
Morley v. Lake Shore Ry. Co., 731.
Mormon Church v. United States,
231, 629, 677, 998.
Morris v. State Mut. Life Ins. Co.,
916.
Morris Can. Co. v. Foster, 890.
Morris C. & B. Co. v. Townsend, 472.
Morris Run Coal Co. v. Barclay Coal
Co., 778. -
Morrison v. Blodgett, 833.
Morrison v. Drakely, 918.
Morrison v. Rodgers, 769.
Morrison v. Sloper-Wells, 30, 411.
Morrow v. Fossick, 834.
Morrow v. Southern Exp. Co., 746.
Morrow v. Weed, 1033.
Morse v. Ryan, 771.
xlvi
TABLE OF CASES.
References are to pages.
Morse v. Wheeler, 712,
Morton v. Murray, 741.
IMorton v. Tibbett, 875.
Morville v. Am. Tract Soc., 559,
Moses v. Loomis, 791.
Moses v. Railroad Co., 903.
TMOSes v. United States, 530.
IMott v. Danville Seminary, 1087.
Mott Iron Works v. Clow, 697.
Mottram v. Hyer, 877.
IMoulton v. Kershaw, 718, 864.
Moulton v. Libbey, 1109.
Moulton v. Robinson, 989.
Mount v. Stokes, 784.
Mount v. Wait, 785.
Mt. Pleasant v. Beckwith, 509, 510,
545.
Mt. Sterling Bank v. Green, 951.
Mowry v. Wood, 890.
Moyer v. Swygart, 1085.
IMueller v. Benner, 687.
Mugler v. Kansas, 456, 457, 458, 1085.
TMules v. Calcott, 411.
Mulhern v. Kent Circuit Judge, 1089,
1101.
Mulholland v. Bartlett, 747.
IMuller v. Dows, 583, 594, 1100.
IMuller v. McKesson, 696.
Mullin v. Cal. Horse Shoe Co., 850.
Munday v. Vail, 1028, 1108.
Munn v. Birch, 950.
Munn v. Illinois, 456, 461, 895.
IMunroe v. Smith, 1080.
Murdock v. Memphis, 1100.
Murphy v. Ramsey, 231.
Murray v. Beckwith, 933.
Murray v. Bogert, 840.
Murray v. Hoboken L. Co., 1029.
Murray v. Kimball Co., 1139.
lMurray v. Lardner, 932.
Murray v. S. C. R. R. Co., 852.
Murray's Lessee v. Hoboken L. &
Imp. Co., 252.
1Murrill v. Neill, 825.
Mutºp v. L. & P. Junc. R. Co.,
05.
Musselman v. Oakes, 936.
Mut, InS, CO. v. Wisewell, 916.
Mut. Life Co. v. Stibbie, 797, 1104.
Mut. Life Ins. Co. v. Kirchoff, 811.
Myatt v. Myatt, 652.
Myers v. Bond, 1084.
Myers v. Byington, 790.
Myers v. Fairbury, 924.
Myers v. Fenn, 1077.
Myº v. S. B. & N. Y. R. R. Co.,
1.
N.
Nagle v. Wakey, 527.
Nanson v. Jacobs, 905.
Nash v. Brewster, 864.
Nash v. Jewett, 711.
Nash v. Lull, 746.
Nash v. Towne, 817.
Nashville v. Bank of Tennessee, 597.
Nashville L. Co. v. Fourth Nat, Bank,
931. -
National Bank v. County of Yank-
ton, 231.
National Bank v. Dearborn, 802.
National Bank v. Diefendorf, 938.
National Bank v. Graham, 592, 906.
National Bank v. Grand Lodge, 798.
National Bank v. Hall, 709.
National Bank v. North, 965.
National Bank v. Union Ins. Co., 914.
National Bank v. United States, 334,
379.
National Mech. B. Ass’n v. Conkling,
920, 923.
National Stove Co. v. Sheahan, 1062.
Natºl S. Y. Co. v. Wiggins Co.,
94
National Tube Works v. Ballou, 1077.
National Union Bank v. Nat. Mech.
Bank, 832.
Nave v. Smith, 1011.
Navigation Co. v. United States, 357.
Neal v. Keel’s Ex’rs, 1074.
Neal v. State, 677.
Neale v. Neale, 742, 1119.
Needles v. Hanifan, 1138.
Needles v. Needles, 1001.
Neer v. Williams, 424.
Nelson v. Allen, 254,
Nelson v. Carland, 388, 394,
Nelson v. Com., 1076.
Nelson v. Cowing, 809.
Nelson v. First Nat. Bank of Chicago,
943.
Nelson v. Mackintosh, 804.
Nestor v. Brewing Co., 778.
Netherland Am. St. Nav. Co. v. Hol-
lander, 679.
Neubert v. Mastman, 1120.
Nevins v. City of Peoria, 554.
Nevins v. Dunlap, 720.
New v. Sailors, 882.
New Brunswick R. Co. v. Conybeare,
723.
Newbury v. Carpenter, 622,623, 1140.
Newell v. Montgomery, 1102.
Newhall v. Cent. Pac. R. Co., 878.
Newhall v. Kastens, 1083.
Newhall v. Marsh, 273.
Newhall v. Vargas, 876, 877, 878.
New Hampshire v. Louisiana, New
York v. Louisiana, 166.
New Hope, etc. Co. v. Perry, 948.
New Jersey Steamboat Co. v. Brock-
ett, 592.
New Jersey Steam Nav. Co. v. Mer-
chants’ Bank, 817, 902.
New London v. Brainard, 521.
TABLE
xlvii
OF CASES.
Teferences are to pages.
Newman v. Gruff, 814.
Newman v. Reagan, 759.
Mewman, In re, 673. -
New Memphis Gas Light Co. v. Mem-
phis, 1090. -
New Orleans v. Abbagnato, 552.
New Orleans v. Citizens’ Bank, 374,
467.
New Orleans v. Houston, 450.
New Orleans v. Tex. Pac. Ry. Co.,
749, 750, 752.
New Orleans v. United States, 233,
1144.
New Orleans W. Co. v. New Orleans,
1028.
New Orleans Water Works v. Louisi-
ana Sugar Co., 394.
Newport, etc. B. Co. v. Wooley, 595.
Newton v. Fay, S81. .
Newton v. Heaton, 825.
New York v. Miln, 347, 348.
New York v. Roberts. 465.
New York Cent. H. R. R. Co. v. Tra-
loff, 906. - -
New York Ice Co. v. N. W. Ins. Co.,
1077
New York Mut. Life Ins. Co. v. Arm-
strong, 916.
New York & N. H. Ry. Co. v. Schuy-
ler, 1051, 1105.
Niagara Ins. Co. v. Fidelity Ins. Co.,
917.
Niblack v. Park Bank, 951.
Nichol v. Thomas, 715.
Nichol v. Tomlinson, 706, 981.
Nichols v. Coolahan, 844.
Nichols v. Drew, 1061, 1119.
Nichols v. Eaton, 973. -
Nichols v. Guibor, 870.
Nichols v. Spremont, 987.
Nickerson v. Ruger, 1143.
Nitro-Glycerine Case, 900.
N. & L. Ry. Co. v. Boston & T. R.
Co., 583.
N. Ry. º C. Co. v. Long Dock Co.,
1119.
N. T. W. Co. v. Gilfillan, 577.
Nockell v. Crosby, 576.
.Nolan v. Manton, 798,
Noonan v. Orton, 1104.
Norcross v. Norcross, 897.
Norfolk & West R. Co. v. Hoover,
849.
Norman v. Norman, 641, 644.
Norrington v. Wright, 761, 762,
Norris v. Corkill, 667.
Norris v. Taylor, 811.
North Bloomfield Gravel Min. Co. v.
United States, 371.
North Chicago St. Ry. Co. v. Ackley,
1031.
North §hicago Ry. Co. v. Lake View,
459.
North River Steamboat Co. v. Liv-
ingston, 344.
Northern Pac. Ry. Co. v. Hambley,
853, 854.
Norgºn Pac. Ry. Co. v. Keegan,
o4.
Northern Pac. Ry. Co. v. Peterson,
854, 857.
N orgºn Pac. Ry. Co. v. Poirier,
57.
Northern Pac. Ry. Co. v. Smith, 857.
Northwestern Bank v. Freeman, 696,
881, 882.
Northwestern L. Ass’n v. Stout, 583.
Norton v. Bank, 491.
Norton v. Baxter, 891.
Norton v. Coons, 925.
Norton v. Shelby Co., 530.
Norway Plains Co. v. Boston & M.
R. R. Co., 903.
Nugent v. Beakes, 875.
Nugent v. Smith, 757.
Nugent v. Wolfe, 739, 918, 921, 923.
Nunnelly v. Southern Iron Co., 592.
O.
Oakes v. Northern, etc. R. R. Co., C06.
Oakley v. Aspinwall, 1034.
Obert v. Hammel, 1033. -
O’Brien v. Fitzgerald, 587.
O’Brien v. Miller, 910.
Ocobock v. Baker, 1078.
O’Connor v. O’Connor, 686.
Odeneal v. Henry, 759.
Ogden v. Moore, 1060.
Ogden v. Ogden, 982. - -
Ogden v. Saunders, 92, 141, 142, 146,
148, 158, 166, 390, 392, 731, 788.
O'Hare Co. v. Daly, 1088.
O’Hear v. De Goesbriand, 962.
Ohio v. Covington, 476.
Ohio § Miss. R. R. Co. v. McPherson,
583.
Ohio & Miss. R. R. Co. v. Tindell, 676,
oniº & Miss. R. R. Co. v. Wachter:
75.
Ohio Life Ins. Co. v. Debolt, 273.
Ohio Nat. Bank v. Hopkins, 771.
Ohio Ry. & Nav. Co. v. Ohio Ry. Co.,
571.
Oil Co. v. Hawkins, 1084.
Oil Co. v. Van Etten, 1131.
Olcott v. Tioga R. R. Co., 805, 943.
O'Leary v. Board, 535, 546, 548.
Oliver v. L. & L. Ins. Co., 564.
Oliver v. Oliver, 730.
Oliver v. Piatt, 1015.
Olmstead v. Beal, 756, 757.
Olmstead v. Camp, 472.
Olney v. Howe, 708, 717, 746.
O'Neil v. Am. Ins. Co., 447, 448, 450.
xlviii
TABLE OF CASES.
References are to pages.
Onondaga Co. Sav. Bank v. United
States, 939.
Ontario Bank v. Hennessy, 827.
Oppenheimer v. Farmers' & Mer.
Bank, 936.
Orchard v. Bush, 896.
Orchard v. Horner, 859.
Orchard W. Potter, 897.
Ord Nat. Bank v. Massey, 883.
Ore. St. Nav. Co. v. Winsor, 777.
Orient Ins. Co. v. Daggs, 599, 609, 612,
623.
Orr v. Goodloe, 722.
Orr v. Pennington, 727. • *
Orr-Ewing v. Colouhoun, 369.
Orson v. Storms, 889.
Osborn v. Bank, 497, 1104.
Osborn v. Stanley, 870, 871.
Osborn v. Weston, 748.
Osborne v. Allen, 675, 676, 677.
Oscanyan v. Arms Co., 768, 784.
Otis v. Spencer, 664.
Ottawa v. Carey, 521, 546.
Ould v. Wash. Hospital, 974, 997,998,
1001.
Outland v. Bowen, 974.
Outram v. Morewood, 1109.
Overton v. Tyler, 930.
Owen v. Robbins, 983.
Owens v. People, 281, 310, 450.
Owings v. Hull, 808.
Owings’ Case, 714.
Oxford Bank v. Haynes, 923.
Oxley Stave Co. v. Coopers’ Int.
Union, 1086.
Oxnard v. Blake, 882.
P.
Pace v. Burgess, 322.
Pace v. Pace, 925. t
Pacific Ex. Co. v. Peabody, 561.
Pacific Ex. CO. v. Shearer, 904.
Pacific Ins. Co. v. Soule, 332, 334.
Pacific Ry. Co. v. United States, 970.
Packard v. Richardson, 741.
Baddock v. Fletcher, 726. .
Page v. Higgins, 720.
Page v. Krekey, 920.
Paine v. Thatcher, 837.
Palmer v. Insurance Co., 721.
Palmer v. Lawrence, 254.
Palmer v. Merrill, 802.
Palmer v. Mulligan, 369.
Palmer v. Palmer, 657.
Balmer v. Plank-Road Co., 750.
Palmer v. Vaughn, 771.
Parberry’s Heirs v. Goram, 1106.
Pardey v. Am. Ship W., 688.
Parish v. Trustees, 998.
Park v. Grant L. Works, 585.
Park v. McGowan, 1075.
Park Bros. Co. v. Blodgett & Co., 720,
721.
Park Hotel Co. v. National Bank, 591.
Parker v. Bethel Hotel Co., 580, 593,
595, 596.
Parker v. Chase, 882.
Parker v. People, 702, 703.
Parker v. S. E. Ry. Co., 731.
Parks v. Alta Tel. Co., 888.
Parmeter v. Hamilton, 396.
Parr v. Village of Greenbush, 524,
Parry’s Estate, In re, 1006.
Parson v. United States, 430.
Parsons v. Boyd, 1005.
Parsons v. Chi. & N. W. R. Co., 904.
Parsons v. Thompson, 771.
Parsons v. Trask, 846.
Parsons v. Webb, 863.
Parton v. Hervey, 637.
Parton v. Williams, 411.
Partridge v. Bene, 1002.
Partridge v. Forsythe, 761.
Partridge v. Hood, 772.
Pasley v. Freeman, 722, 1037, 1048.
Patch v. Covington, 549.
Patchin v. Swift, 741.
Pate v. Hinson, 1116.
Paterson v. Gandasefen, 815.
Patrick v. Bowman, 719.
Patrick V. Patrick, 746.
Patterson v. Blanchard. 828.
Patterson v. Browning, 673.
|Patterson v. Gaines, 672.
Patterson v. Kentucky, 456.
Patterson v. Patterson, 682.
Patton v. McCane, 872.
Paul v. Berry, 922.
Paul v. Com. Of Pa., 340.
Paul v. Detroit, 474.
Paul v. Hazelton, 701.
Paul V. Penna, 354.
Baul v. Virginia, 344, 424, 487.
Paule v. Mining Co. 855.
Payne v. Newcomb, 785, 931.
Payton v. Baker, 806.
Peabody v. Dewey, 718, 720, 730, 1134,
1135, 1138.
Peabody v. Flint, 589.
Beabody v. Norfolk, 848.
Pearce v. Brooks, 774.
Pearce v. Dill, 783.
Pearce v. Lisle, 32.
Pearce v. Rice, 783.
Peck v. Henrich, 769.
Peck v. Herrington, 993.
Peck v. Vandemark, 741.
Peckham v. Winter, 742.
Peel Splint Coal Co. v. West Vir-
ginia, 86, 167, 460.
Peeples v. Byrd, 482.
Peltz v. Eichele, 775.
Pembina Silver Min. Co. v. Pennsyl-
vania, 581. -
TABLE OF CASES.
xlix
Teferences are to pages.
Penn v. Lord Baltimore, 172, 1078,
1081
Pennegar v. State, 641.
Pennell v. Hartford Ins. Co., 1078.
Pennington v. Pennington, 973, 1022.
Pennoyer v. Neff, 659, 1037.
Pennsylvania v. Wheeling T. B. Co.,
370, 413.
Pennsylvania Ry. Co. v. Locomotive,
99
Pennsylvania Ry. Co. v. McCann,
1133.
|Pensacola Tel. Co. v. W. |U. Tel. Co.,
424, 583
* iº
P. C. & St. L. Ry. Co. v. Shields, 860.
I’eople v. Adelphi Club, 563.
Teople v. Albertson, 436, 437, 449,
481, 514, 543.
People v. A. & V. Ry. Co., 1091.
Beople v. Bangs, 530.
Beople v. Boards, 1094. . .
Beople v. Board Met. Police, 281, 524.
IPeople v. Brady, 1095.
People v. Brandreth, 1136.
People v. Chicago, 557. -
People v. Chicago Gas L. Co., 558,
559, 571, 573, 594, 775.
Beople v. Coleman, 564. --&
Beople v. Conklin, 602.
People v. Crabb, 1093,
IPeople v. Dawell, 659.
People v. Detroit, 503.
People v. Draper, 436, 437, 514, 543.
People v. Duke, 778. -
People v. Enoch, 1150.
People v. Ewer, 675, 678.
People v. Forbes, 1132.
People v. Ft. Wayne & E. Ry. Co.,
555.
Teople v. Gas Trust Co., 461.
Beople v. Gates, 675, 688.
I’eople v. Haney, 490.
People v. Hatch, 483.
People v. Hecker, 611.
People v. Holliday, 1010.
People v. Holtz, 1094.
People v. Horton, 1035, 1094.
People v. Hurlbut, 262, 275, 437, 439,
442,449, 476, 478, 502, 513, 514, 517,
538, 539, 541, 542.
People v. Hutchinson, 273, 291, 443.
People v. Kipley, 481.
Beople v. Lewis, 482.
People v. Liscomb, 1108.
People v. McLeod, 410.
People v. Marks, 459.
People v. May, 807.
People v. Morris, 506.
People v. North Chicago Ry. Co.,
1094,
People v. N. R. Sugar Refining Co.,
461, 485, 496, 497, 558, 582, 594,
596, 600.
People v. O'Toole, 273, 291.
People v. Overyssel Tp., 11 Mich. 222,
S12.
People v. Pullman Palace Car Co.,
485, 558, 1094.
People v. Purdy, 490. !
People v. Reynolds, 450.
People v. Rice, 287, 441, 520, 628.
People v. Ryder, 1116.
People v. St. R. R. R. Co., 291.
People v. Seymour, 337.
People v. Sheldon, 778.
People v. Sheppard, 884.
People v. Shuman, 920.
People v. Starne, 444.
People v. Supervisors, 441, 520.
People v. Swigert, 483.
People v. Thompson, 214, 215, 287.
People v. Tioga, 690, 691, 802.
People v. Town Board, 770, 1095.
People v. Town of Salem, 143, 144,
464.
People v. Township Board, 813.
People v. Trustees of Schools, 467,521.
People v. Turner, 678.
People v. United States, 214.
People v. Village of Harvey, 506, 547.
People v. Webber, 530.
People v. Wilson, 291.
People v. Yates, 482.
People ex rel. v. Simons, 280, 1019.
People's Bldg., L. & S. Ass’n v. Kel-
ler, 811.
People’s Home ins. Co. v. Supreme
Court, 575,
Peris v. Hexamer, 698.
Perkins v. Jones, 1020.
Perley v. Spring, 890.
Permoli v. First Municipality of New
Orleans, 215.
Perrin v. Blake, 1011, 1013.
Perry v. Carmichael, 684.
Perry v. Worcester, 554.
Peters v. Fowler, 668.
Peterson v. Christensen, 768.
Petillon v. Hipple, 781.
Petty v. Rosseau, 712.
Pfeiffer v. Board, 628, 629.
Phalen v. Lawler, 1061.
Phelps v. Bostwick, 889.
Phelps v. Phelps, 139, 983.
Phelps v. Railway Co., 1061.
Phial Mort. & Tr. Co. v. Miller, 965.
Philadelphia v. Fox, 493, 497, 505, 514,
534, 539.
Philadelphia v. Overseers of Public
Schools, 467.
Philadelphia Loan Co. v. Towner, 559.
Philadelphia, etc. R. R. Co. v. Lehigh
Nav. Co., 1005.
Philbrook v. Newman, 840.
Phillips v. Burr, 806.
Phillips v. Bury, 533, 998.
TABLE OF CASES.
References are to pages.
Tºhillips v. Curts, 866.
Phillips v. Earle, 901.
Phillips v. Evans, 894.
Phillips v. Moir, 809.
Phillips v. Moore, 602.
Phillips v. Phillips, 830.
Philomath College v. Wyatt, 593.
Philpot v. Gruninger, 743.
Phipp v. State, 701.
Philº, v. Harding, 926, 927, 928, 937,
Phoebe v. Jay, 214.
Phoenix Ins. Co. v. Stocks, 809, 811.
Piatt v. Longworth, 770.
Pickard v. Sears, 732.
Pickett v. School District, 770,
Pierce v. Emery, 499
Pierce v. Endseth, 946.
Pierce v. Paine's Estate, 740.
Pierce v. Prescott, 686.
Pierce v. Swan Pt. Cem., 682.
Fierse v. Fauconberg, 369.
Pierson v. Post, 696,
Pike v. Chicago, etc. R. Co., 895.
Pike v. Hoare, 1082.
Pike v. Wassell, 979.
Pillans v. Van Mierop, 736, 745, 927.
Pillsbury-Washburn F. M. Co. v.
Eagle, 701.
Pindar v. Resolute F. Ins. Co., 734.
Pindell v. Railway Co., 904,
Piper v. Manny, 897.
Pittsburgh, C. & St. L. R. Co. v.
Hamilton B. Co., 559.
Pittsburgh, Ft. W. & C. R. Co. v.
Hazen, 900.
Pittsburgh & St. L. R. R. Co. v. Keo-
kuk B. Co., 559.
Pixler v. Nichols, 759.
Pixley v. Boynton, 783.
Planters’ Ass’n v. Hanes, 1076.
Plato v. Reynolds, 941.
Platt v. Archer, 396.
Platt v. Iron Ex. Bank, 1104.
Plessy, Ex parte, 627, 628.
Plumley v. Massachusetts, 456, 458.
Pollard v. Hagan, 215, 232.
Pollard v. Shaaffer, 1053.
Pollard v. Vinton, 878.
Pollock v. Farmers’ L. & T. Co., 318,
320, 321, 323, 326, 327, 329, 330, 334,
336, 337, 465, 466, 588, 969.
Poliock v. Landis, 897, 898. J
Pomeroy’s Case, 714.
Pool v. Blackie, 982.
IPool v. Lewis, 695.
Poºjackson & Whyte, Case of,
589.
Pooley v. Driver, 825.
Pope v. Hanke, 781, 783.
Pope v. Porter, 756, 762, 763.
Pordage v. Cole, 753.
Port v. Port, 647, 649, 653, 654,
Porter v. Horton, 925.
Porter v. Parmley, 880.
Porºuth etc. R. R. Co. v. Forsaith,
5.
Post v. Pearsall, 1009.
Post v. Pearson, S14.
Pott v. Turner, 807.
Potter v. Beal, 622,
Potter v. Hopkins, 728. -
Potter v. The Majestic, 731.
Potts v. Bell, 767.
Potts v. N. Y. etc. R. R. Co., 878. -
Powell v. Board of Education, 534. ,
Powell v. Pennsylvania, 458.
Powell v. Rich, 962.
Powers v. Briggs, 938.
Powers v. Bumcratz, 920, 923.
Powers v. Jackson, 983.
Powys v. Andrews, 1084.
Pratt v. Borough of Litchfield, 521,
546. . -
Pratt v. Brown, 254,
Pratt v. Paris Gas Co., 699.
Pratt v. Thornton, 924.
Prebles v. Gay, 924.
Prentiss v. Ledyard, 844.
Presbyterian Church v. Cooper, 747.
Presser v. Illinois, 405, 407,408, 605.
Preston v. Prather, 907.
Pretty man v. Walston, 979.
Prewit, v. Wilson, 744.
Price v. Price, 995.
Price v. Sanders, 710.
Price v. State, 611.
Prichard v. Budd, 817, 818.
|Priester v. Priester, 743.
Priestly v. Fowler, 254, 851.
Primrose v. W. U. Tel. Co., 888.
Prince v. Alabama State Fair, 907.
Prince George, The, 910.
Printing Co. v. Sampson, 763.
Pritchard v. Norton, 742.
Prize Cases, 412.
Proctor v. Tows, 804.
Proprietors v. Newcomb, 567.
Proprietors v. Prescott, 1011.
Proprietors of Cornish v. Kendrick,
441, 517, 520.
Prout v. Pittsfield, 747.
Providence Bank v. Billings, 493.
Pullman P. C. Co. v. Gavin, 898.
Pullººn P. C. Co. v. Laack, 848,
850.
Pullman P. C. Co. v. Towe, 898.
Pullman P. C. Co. v. Matthews, 898.
Pullman P. C. Co. v. Smith, 898.
Pumpelly v. Green Bay Co., 469.
|Purcell v. Purcell, 663.
Purdy v. People, 608.
Purviance v. Shultz, 688.
Putnam v. Wise, 828.
Pyeatt v. Powell, 878, 870, 880, 881,
882, 883.
TABLE OF CASES.
References are to pages.
Q.
Quick v. Miller, 667.
Quincy H. Ry. Co. v. Gnuse, 553.
Quinn v. L. & N. Ry. Co., 627.
Quinn v. State, 1010.
R.
Race v. Oldridge, 633, 987.
Raffles v. Wichelhaus, 720.
Rahrer, In re, 347, 456, 457, 459.
Railroad Co. v. Collector, 334.
Railroad Co. v. Davis, 472. '
Railroad Co. v. Fort, 849.
Failroad Co. v. Husen, 340.
Railroad Co. v. Lahr, 855.
Lockwood, 902.
Manufacturing Co.,
. Miles, 628.
. National Bank, 927.
. O’Donnell, 901.
. Pollard, 908.
Railroad Co.
Railroad Co.
731, 902.
Railroad Co.
Railroad Co.
Railroad Co.
Railroad CO.
i
Railroad Co. v. Rock, 393.
Railroad Co. v. Triplett, 857.
Railway Co. v. Adams, 855.
Railway Co. v. Baugh, 854.
V
V
V
V
V
V
V
IRailway Co. v. Allerton, 574, 579,583.
V
Railway Co. v. Fosdick, 1078.
V
V
V
V
V
V
Railway Co. v. Gray, 1099.
Railway Co. v. Keary, 853.
Railway Co. v. Tewis, 853.
Railway Co. v. McCarthy, 561.
Railway Co. v. Mills, 559.
Railway Co. v. National Bank, 249.
Railway Co. v. Nevill, 900.
Railway Pass. Ass’n v. Loomis, 727.
Rakestraw v. Lanier, 775.
Ralston v. Bank, 580.
Rand v. Kendall, 983.
Randall v. Railway Co., 695.
Randall v. Randall, 665, 669, 769.
Randall v. Vroom, 874.
Randidge v. Lyman, 730.
Rann v. Hughes, 707, 736, 744.
Ransom v. Jones, 802.
Rapier, In re. 414.
Rathbone v. Hopper, 491.
Rathbone v. N. Y. C. & H. R. R. Co.,
903.
Pathbone v. Wirth, 478, 514, 515, 544.
Rathbun v. Snow, 584, 811.
Rawlings v. Hunt, 862.
Raymond v. Prop. Crown & E. Mill,
815.
Raynsford v. Phelps, 528.
Read v. St. L., K. C. & N. R. Co., 900.
Rector v. McCarthy, 923,
Reddaway v. Banham, 701.
Reddish v. Pinnock, 564,
Redevill v. Gillen, 872.
Reed v. Jourdan, 1060, 1109.
Réed v. Kemp, 920.
Reed v. McGrew, 791.
Reed' v. Randall, 870.
Reed v. Roark, 935.
Reed v. Stanley, 817.
Reed v. Wilson, 946.
Reed, Ex parte, 409.
Reeder v. Sayre, 1061, 1062,
Reeves v. Ayers, 825.
Reeves v. Webster, 668.
Reg. v. Governor, 575, 977.
Reg. v. Millis, 637.
Reg. v. Ramsey & Foot, 88, 630.
Reg. v. Wilkis, 286. *
Regents of Univ. Md. v. Williams,
156, 276, 277, 437, 439, 456, 495,
502, 533, 579, 593, 596, 1094. -
Regina v. Stewart, 681.
Regina v. Vann, 682.
Reichwald v. Com. Hotel Co., 578,
584, 595.
Reid v. Stanley, 813.
Reilley v. Campbell, 849.
Reilly v. Otto, 1016, 1017.
Reinheimer v. Hemingway, 833.
Relfe v. Rundle, 584.
Remer v. Mackay, 1080, 1082,
Remsen v. Beekman, 920, 924.
Renihan v. Wright, 682.
Renner v. Bank of Columbia, 246,
731, 946.
Renselaer Glass F. v. Reid, 1076.
Rensellaer v. Dennison, 995. -
Renshaw v. Mo. etc. Ins. Co., 915.
Renz v. Drury, 673.
Respublica v. Sparhawk, 468.
Revell v. Mayor of Annapolis, 533,
534, 547, 623. *
Revelle v. People, 1019.
Rex v. Burdett, 1144.
Rex v. Carlisle, 461, 630.
Rex v. Knollys, 160.
Rex v. Larwood, 490.
Rex v. Maddington, 844.
Rex v. Montague, 369.
Bex v. Murray, 672.
Reynolds v. Fitzpatrick, 880.
Reynolds v. McCurry, 711. 4.
Reynolds v. Reynolds, 655.
Reynolds v. Stockton, 1028. 4.
Reynolds v. United States, 629,
Rhea, v. Riner, 875.
Rhode v. Bate, 819.
Rhode v. Biggs, 925.
Rhodes v. Iowa, 340, 350, 353, 354.
Rhodes v. Jenkins, 939.
Rhodes v. Robie, 982.
Rice v. Angell, 842.
Rice v. Lumley, 663.
Rich v. N. Y. Cent. & H. R. Co., 1006,
1037, 1065.
Richard v. Raymond, 533, 534.
TABLE OF
CASES.
References are to pages.
Richard v. Warren, 525.
Richards v. Cline, 813.
Richards v. Salter, 1082.
Richardson v. Anthony, 1038.
Richardson v. Cooper, 791.
Richardson v. Eagle Mach. Works,
760.
Richmºnd & D. Ry. Co. v. Mitchell,
33. .
Richmond Ry. Co. v. Bowles, 1104.
Richmond, etc. R. R. Co. v. Trous-
dale, 901.
Ricker v. Kelley, 994.
Ricketts v. Harvey, 772. *
Tiddle v. Proprietors, 518. ‘.
Ridenbaugh v. Young, 773.
‘Rider v. Fritchey, 594,
Riedeburg v. Schmitt, 825.
Riggs v. Sterling, 987.
Rigney v. Chicago, 126, 127, 151, 470,
475, 1037. -
Rigney v. Rigney, 659, 663, 1120.
Riley v. Mallory, 711, 712.
Riley v. Penn. Mut. L. Ins. Co., 732.
Tindskoff v. Barrett, 731.
Risdon I. & L. Works v. Medart, 699.
Risher v. Meehan, 531.
Ritchie v. People, 459, 460, 461.
Ritter v. Mutual L. Co., 914, 915, 916.
Riverside v. Townshend, 1109.
Riverside Iron Works v. Judges,
1077.
Roach v. Board of Directors, 534.
Robbins v. Chicago, 847.
Robbins v. Fuller, 841.
Robbins v. Taxing District, 345, 779.
Roberts v. Boston, 627.
Boberts v. Cole, 747.
Roberts v. Ogle, 552.
Roberts v. Reilly, 1095.
Roberts v. Thompson, 907.
Robertson v. Baldwin, 713, 846,
Robertson v. Pickrell, 1006.
Robins v. Bingham, 943.
Robinson v. Ames, 942. -
Robinson v. Chamberlain, 528,
Bobinson v. Evansville, 549.
Robinson v. Harlan, 1034.
Robinson v. Hurley, 891.
Robinson v. James, 1136.
Tobinson v. Smith, 1106.
Robinson v. United States, 731.
Robinson, Ex parte, 626.
Robinson Bank v. Miller, 832.
Rochester v. Jones, 890.
Rockingham Bank v. Claggett, 924.
Rock Island v. Steele, 522.
Rockwell v. Wearing, 283,889.
Rodgers v. Stophel, 907.
Roff v. Burney, 601, 606.
Rogers v. Batchelor, 838.
Rogers v. Galloway College, 747.
Rogers v. Holden, 804.
Rogers v. Mech. Ins. Co., 246.
Rogers v. Moore, 979.
Rogers v. Port Huron Ry. Co., 419.
Rogers v. Rogers, 792.
Rogers v. Rogers & S. Mfg. Co., 700.
Rogers v. Smith, 674.
Rohrbough v. Leopold, 864.
Roller Co. v. Cushman, 778.
Rolling Mill Co. v. Johnson, 852, 855,
Romeyn v. Sickles, 1060, 1061.
Root v. Chandler, 889.
Root v. L. T. R. R. Co., 904.
Root v. Merriam, 766.
Root V. Stafford, 711.
Rorer Iron Co. v. Trout, 723.
Rose v. Wollenberg, 918, 922.
Roseboom v. Van Vechten, 979.
Rosenfield v. Einstein, 1094,
Rosenthal v. Walker, 1070.
Ross v. Allen, 741.
Ross v. Doland, 725, 933.
Ross v. Ft. Wayne, 769.
Ross v. Irving, 961.
Ross v. Payson, 813.
Rosson v. Carroll, 944.
Rotch v. Hawes, 892.
Boulston v. McClelland, 888.
Rouse, Hazard & Co., In re, 396.
Rousillon v. Rousillon, 777.
Routledge v. Worthington Co., 730.
Rowan v. Sharps' Rifle Co., 862.
Rowell v. Claggett, 890.
Rowland v. Windley, 1118.
Rowley v. Bigelow, 876.
Royal Baking Powder Co. v. Ray-
mond, 701.
Roy: Neighbors of Am. v. Roman,
4.
Royce v. Allen, 815.
Rozelle v. Rhodes, 888.
Rublee v. Davis, 932, 934.
Ruch v. Rock Island, 1001, 1002.
Rucker v. Bolles, 769.
Rucker v. Donovan, 878.
Ruckman v. Bergholz, 812.
Rudder v. Price, 1049, 1050.
Ruggles v. Am. Cent. Ins. Co., 914.
Ruggles v. Illinois, 616.
Ruggles v. Johnson, 630.
Ruhl v. Phillips, 865, 874.
Rumford v. Wood, 504, 573.
Rumsey v. Berry, 783.
Rung v. Shoneberger, 282.
Runk’s Ex’rs v. Insurance Co., 916.
Runnells v. Gerner, 715.
Rupley v. Daggett, 720.
Rupp v. Meier, 665.
Ruse v. Mut. Ben. L. T. Co., 911.
Rush v. Bank, 891, 892.
Rush v. Good, 797.
Rushville. Gas Co. v. Rushville, 550.
Russell v. Baptist Union, 1144.
Russell v. Fillmore, 882.
TABLE OF CASES.
liii
References are to pages,
Russell v. Hubbard, 994,
Russell v. Men of Devon, 487.
Russell v. Southard, 881.
Russell v. Stewart, 718.
Russell v. Stowe, 791.
Russell v. Work, 1033.
Rutter v. Chapman, 490, 537.
Ryan v. Central Pac. Ry. Co., 424.
Ryan v. Chicago, etc. Ry. Co., 857.
Ryan v. Dayton, 758, 760, 844,
Ryan v. Egan, 603.
Ryan v. Goodwin, 699.
Ryan v. Knesor, 925.
Ryan v. Lynch, 444.
Ryan v. Mayor, 449.
Ryder v. Holt, 701.
Ryder v. Smith, 993.
Rye v. City of Mankato, 554.
Ryhmer v. Feickert, 936.
Rymer v. Sim, 739.
S.
Sacks v. Minneapolis, 557, 559.
Safety T. W. Co. v. Baltimore, 502.
Sage v. Shepard & M. L. Co., 811.
Saginaw, T. & H. R. Co. v. Chappell,
805.
Saint v. Wheeler & Wilson, 919.
St. Clair Co. Ben. Ass’n v. Fietsam,
728.
St. Louis v. Western Union Tel. Co.,
413, 424, 555.
St. Louis & S. F. Ry. Co. v. Gill, 904.
St. Louis & S. F. Ry. Co. v. James,
583.
St. Louis & S. F. Ry. Co. v. Johnson,
949, 950.
St. L. S. Ry. Co. v. Elgin Con. Milk
Co., 905.
St. Paul Bank v. Cannon, 746.
Salmon Falls Mfg. Co. v. Goddard,
741.
Salt Co. v. Guthrie, 778,
Salt Lake City v. Hollister, 559, 592.
Salt Springs Nat. Bank v. Burton,
947, 948.
Sanborn v. Benedict, 862.
Sanders v. Keber, 863.
Sanders v. State, 686.
Sands v. Manistee River Imp. Co., 214.
Sanford v. Handy, 808.
Sanford v. Howard, 719.
Sanger v. Dun, 724, 733, 734.
Sanger v. Eastwood, 882.
Sanger v. Thomasson, 864.
Sanger v. Warren, 815.
San Mateo Co. v. Southern Pac. Ry.
Co., 1047.
Santa Clara Co. v. Southern Pac. Ry.
Co., 153, 201, 203, 336, 420, 445,
474, 599, 1029, 1047.
Tº
Sarah v. State, 1150.
Sarah L., The, 172. .
Saratoga Co. Bank v. King, 765.
Sargent v. Boston, etc. R. R. Co., 904.
Sargent v. Usher, 894. -
Saulet v. Shepherd, 1008.
Savage v. Corn Exch. I. Co., 911.
Savings Bank v. Evans, 987.
Savings Bank v. Richards, 943.
Savings Bank v. United States, 337.
Savings & Loan Ass’n v. Burghardt,
987.
Sawrie v. Tennessee, 458.
Sawyer v. Campbell, 1119.
Sawyer v. City of Alton, 291.
Sawyer v. Gerrish, 696.
Sawyer v. Lufkin, 716.
Sawyer, In re, 1036, 1038, 1066, 1085.
Sayler v. Simpson, 1102.
Sayles v. Davis, 321.
Scaife v. Emmons, 1020.
Scanlon v. Cobb, 715.
Scarlett v. Norwood, 680. -
Schaeffer v. Philadelphia, etc. R. R.
Co., 901. ,
Schafer v. Hauser, 1009.
Scharff v. Meyer, 878.
Scharpf v. Schmidt, 603.
Scheubert v. Honel, 1077.
Schenck v. Dart, 813.
Schenkl v. Dana, 837.
Schermerhorn v. Tolman, 785.
Schermerhorn v. Vanderheyden, 796.
Schiltz v. Roenitz, 673.
Schleter v. Keiter, 593.
Schloss v. Feltus, 865, 870, 873.
Schloss v. Hewlet, 771.
Schloss v. Wood, 899.
Schmidt v. Blood, 896.
Schmidt v. Oregon G. Min. Co., 1031.
Schneck v. City of Jeffersonville, 547.
Schneider v. Schiffner, 930. -
Schneider v. Turner, 781.
Schofield v. Bayard, 944.
Schofield v. Railway Co., 905.
Schofield v. Walker, 727.
Scholey v. Rew, 333, 334, 466. -- -
Schollenberger v. Pennsylvania, 354,
757.
School District v. Dauchy, 757, 758.
School field v. Lynchburg, 466. -
Schuler v. Bank, 951.
Schultz v. Culbertson, 772.
Schunster v. Kansas City R. Co., 797.
Schuyler v. Curtis, 683. .
Schwartz v. Sanders, 757, 758.
Schwerin v. McKie, 895,
Scott v. Barry, 625.
Scott v. Donald, 622.
Scott v. McNeal, 1036.
Scott v. Rutherford, 1015.
Scott (Dred) v. Sanford, 169, 189, 190,
231, 293.
liw
TABLE OF CASES.
References are to pages.
Scott v. Watson, 710.
Scranton v. Wheeler, 369, 370.
Scrimshire v. Scrimshire, 639.
Scudder v. Delashmutt, 825.
Scudder v. Worster, 864, 866.
Searight v. Stokes, 360.
Searle v. Galbraith, 714.
Seaver v. Adams, 670.
Seaver v. Lincoln, 946.
Second Nat. Bank v. Diefendorf, 941.
Second Nat. Bank v. Gilbert, 866.
Secord v. Secord, 682.
Seddon v. Rosenbaum, 740.
Seddon v. V. T. & C. S. Co., 594,
Segelbaum v. Segelbaum, 657.
Segrist v. Crabtree, 872.
Seibert v. Todd, 984.
Seibold v. People, 552.
Seitz v. Mitchell, 668.
sellº, v. Wilmington, etc. Ry. Co.,
1.
Selden v. Myers, 717.
Selectmen v. Boylston, 1047.
Selkrig v. Davis, 831.
Selz v. Evans, 866.
Selz v. Unna, 1078.
seniº v. New Orleans, etc. R. Co.,
696.
Sergeant v. Steinberger, 1005.
Seroka v. Kittenberg, 667.
Settembre v. Putnam, 563.
Sewing Machine Cases, 1099.
Seymour v. Haines, 1030.
Seymour v. Long Dock Co., 1071.
Seymour v. Wilson, 865, 873, 874.
Shackleford v. Hall, 1021.
Shackleton v. Sebree, 716, 982.
Shaffer v. Union Mining Co., 460.
Shanks v. Klein, 831.
Sharington v. Strotton, 734,
Sharp v. Sharp, 658.
Shattux v. Insurance Co., 570.
Shaw v. Davis, 899.
Shaw v. Farnsworth, 988.
Shaw v. Hoffman, 990.
Shaw v. Spooner. 772.
Shaw v. Stone, 809.
Shaw Stocking Co. v. Mack, 700.
Shawneetown v. Baker, 551.
Shear v. Wright, 793.
Sherer v. Moses, 751.
Sheers v. Stein, 676, 678.
Shelby Co. v. Union & Planters’
Bank, 467.
Sheldon v. Sherman, 1038.
Sheldon v. Sill, 125.
Shelton v. Marshall, 353,
Shepard v. Shepard, 665.
Sheridan v. Colvin, 1036.
Sherington v. Strotton, 743, 744,
Sherman v. Johnson, 681.
Sherrill v. Connor, 979.
Sherry v. Robinson, 938.
Sherwood v. Agricultural Ins. Co.,.
915.
Sherwood v. Walker, 720.
Shields v. Pettie, 871.
Shipley v. Carroll, 930.
Shipman v. Furnace, 1119.
Shipp v. Williams, 1104.
Shiveley v Bowlby, 1019.
Shivers v. United States, 970.
Shoemaker v. United States, 475.
Sholtz v. Wall, 897.
Shreeves v. Allen, 932.
Shuey v. United States, 718,
Shults v. Shults, 882.
Shultz v. Shultz, 1019.
Shumate v. Com., 780.
Shumm v. Seymour, 525.
Shumway v. Bennett, 519, 535, 537,
545, 546.
Shumway v. Stillman, 1034.
Siebold, Ex parte, 293, 1035.
Siedenbach v. Riley, 882.
Siegel, C. & Co. v. Chicago Tr. & Sav.
Bank, 934.
Siemon v. Schruck, 999.
Sifken v. Wray, 878.
Sikes v. Johnson, 710.
Sill v. Corning, 290.
Silloway v. Brown, 986.
Silverman v. Kristufek, 997.
Silverthorn v. Wylie, 748.
Sim v. Pyle, 725.
Simmons v. Bull, 674.
Simon v. Allanta, 549.
Simons v. Vulcan Oil & Mining Co.,
583.
Simpson v. Grayson, 680.
Simpson v. Leech, 984.
Simpson v. State Bank of Cresco,864.
Sims v. Bice, 723.
{
| Sims v. Chance, 892.
Sims v. Everhardt, 711.
| Simson v. Brown, 798.
Singer Co. v. June Co., 169, 701.
Singer Mfg. Co. v. Miller, 898.
Singer Sew. Mach. Co. v. Domestic
Mach. Co., 1086.
Sirrine v. Briggs, 833.
Sisk v. Smith, 983, 984, 985.
Skelton v. Dustin, 941, 947.
Skillman v. Lockman, 562.
Skinner v. Lambert, 564.
Skip v. Howard, 1090.
Slaughter-house Cases, 319, 609, 613,
628, 778.
Sloan v. Beemiller, 1019.
Sloan v. Davies, 747.
Sloan v. Williams, 800, 1104.
Slocum v. Pomeroy, 939.
Smalley v. Edey, 935.
Smalley v. Green, 740.
Smaltz v. Boyce, 853.
Smedley v. Felt, 713.
TABLE OF CASES.
ly
References are to pages.
Smiley v. Fry, 951.
Smiley v. Smiley, 1018.
Smith v. Alabama, 252.
Smith v. Ala. L., Ins. & T. Co., 559.
Smith v. Albany, 770.
Smith v. Barber, 872.
Smith v. Brittenham, 1071, 1079.
Smith v. Brown, 32.
Smith v. Chamberlain, 627.
Smith v. City of Rochester, 471.
Smith v. Curlee, 935.
Smith v. Flagg, 525.
Smith v. Goldsworthy, 564.
Smith v. Gowdy, 864.
Smith v. Hayman, 859.
Smith v. Hughes, 732.
Smith v. Hurd, 585.
Smith v. Littlefield, 990.
Smith v. Madden, 686.
Smith v. Mawhood, 766.
Smith v. Mayo, 712.
Smith v. Miller, 942.
Smith v. Moore, 882.
Smith v. Mo. Pac. Ry. Co., 1060.
Smith v. Pinney, 747.
Smith v. Richards, 722,
Smith v. Rogers, 677.
Smith v. Rumsey. 1060.
Smith v. Shaw, 434.
Smith v. Slocum, 677.
Smith v. Smith (Va.), 1088.
Smith v. Smith (Oreg.), 655.
Smith v. Smith (Ill.), 791.
Smith v. Walker, 842.
Smith v. Whitney, 409.
Smith v. Williams, 746.
Smith v. Wilmington Co., 793.
Smith v. Wilson, 896.
Smith, Matter of, 833.
Smutzer v. Stimson, 769.
Smyth v. Ames, 358, 599, 618, 623,
904, -
Smyth v. Ward, 863.
S. & N. A. Ry. Co. v. H., A. & R. Ry.
Co., 1121.
Snell v. Chicago, 562, 573, 595.
Snider v. Rinehart, 1080.
Snodgrass v. Bank, 1068, 1070.
Snow v. Perkins, 962.
Snyder v. Harper, 1061.
Snyder v. Snyder, 682.
Society v. Gage, 1107.
Society v. New Haven, 178.
Solomon v. Hertz, 848.
Somerset's Case, 32, 89.
Soon Hing v. Crawley, 461.
South S. W. Co. v. Sharmon, 889.
South Carolina v. Georgia, 370.
Southcote's Case, 903, 906.
Southern v. How, 700.
Southern Cal. R. Co. v. Rutherford,
361.
Southern Ex. Co. v. Dickson, 877.
Southern Pac. Ry. Co.
v. Orton, 493,
499, 501, 570. -
Southern R. R. Co. v. Covenia, 679,
Southey v. Sherwood, 697.
Southgate v. Montgomery, 1075.
Spaids v. Barrett, 726.
Spangler v. C. & A. R. R. Co., 909.
Spangler v. Jacoby, 444.
Sparling v. Parker, 563.
Sparrow v. Kingman, 254.
Spaulding v. White, 453, 1084.
Speight v. People, 502.
Spencer v. Hale, 875.
Sperry v. Spaulding, 931.
Spies v. Gilmore, 947.
Spinney, Ex parte, 449.
Spragins v. Houghton, 293.
Sprague v. Birchard, 528.
Sprague v. Bailey, 337.
Sprague v. National Bank of Amer-
ica, 577, 580, 595.
Sprague v. Rooney, 774.
Sprague v. Warren, 783.
Spring v. Insurance Co., 1082.
Springer v. United States, 323, 329,
333.
Springfield F. & M. Ins. Co. v. Keens-
ville, 502, 523.
Springfield Ins. Co. v. Keeseville, 55.
Springfield Int. v. Copeland, 1084.
Springfield Ry. Co. v. Welsch, 1136.
Sprout v. Crowley, 843.
Spycher v. Werner, 792.
Stace v. Mabbott, 1128. -
Stackpole v. Arnold, 728, 729, 1139.
Stacy v. Knickerbocker Ice Co., 892.
Stafford v. Howel, 1119.
Stamford v. Stamford Horse Ry. Co.,
359.
Stanet's Case, 43.
Stanley v. Jones, 769.
Stans v. Bailey, 985.
Stark v. Starr, 804. .
Stark v. Storrs, 997.
Starr v. Peck, 1143. 4
Starrett v. Barber, 891.
Starrett v. Wynn, 666.
State v. Absence, 1150.
State v. Adams, 456, 579.
State v. Allen, 283, 337.
State v. Alston, 465, 466.
State v. Armington, 659.
State v. Atkins, 320, 597.
State v. Bailey, 446.
State v. Beasley, 1150.
State v. Beattie, 1031.
State v. Bishop, 700.
State v. Board, 628, 629.
State v. Boyd, 482.
State v. Bruner, 695.
State v. Bulkeley, 477.
State v. Campbell, 1150.
State v. Copeland, 531.
lvi
TABLE OF CASES.
References are to pages.
Coste, 1081.
Covington, 478.
State v.
State v.
State v.
440, 441, 445, 449, 485, 513, 520
Cunningham, 185, 216, 439,
3.
545, 607, 608, 1026, 1036, 1091, 1095.
State v.
State v.
.State v.
Dalrymple, 466.
District Board, 462.
Dodge, 1095. *
State v. Doherty, 482.
State v. Ellington, 443, 446.
State v. Ferris, 465.
‘State v. Foster, 1084.
State v. Gardner, 529, 530.
State v. Gibbs, .597.
State v. Gilmore, 295.
State v. Gilpi, 563.
State v. Goodenow, 659.
State v. Goodwell, 460.
State v. Graves, 1150.
State v. Grizzard, 530.
State v. Guilbert, 1019.
State v. Hamlin, 466.
State v. Hayes, 889. .
State v. Howe, 597.
State v. Hudson Co., 523.
State v.
408,
State v.
State v.
State v.
State v.
State v.
State v.
State v.
State v.
State v.
State v.
State v.
449.
State v.
State v.
State v.
State v.
State v.
State v.
State v.
State v.
State v.
789, 1094.
State Bank v. Butler, 733, 835.
statº rel. McCready v. Hunt, 190
201.
State of Georgia v. Brailsford, 1027
1064
512, 604.
Johnson, 482, 1101.
Jones, 677, 1067.
Tºuse, 1085.
McCaffrey, 675.
McKenzie, 1150.
M’Meekin, 20, 408.
Mayor, 552,
P. & N. Lumber Co., 581.
Sibley, 593.
Stanton, 1030.
Steele, 896.
Tolan, 1094.
Toledo, 556.
Vaughn, 611.
Wernwag, 866.
Williams, 337.
Yeatman, 524.
: State of Georgia v. Stanton, 429.
State of Louisiana v. Bank, 587.
State of Mississippi v. Johnson, 429
432.
State Mut Ins. Co. v. Brinker St. CO
720.
State Nat. Bank of S. v. Butler, 821
Staub v. Kendrick, 906.
. Stearns v. L. S. & M. S. R. Co., 747.
State Medical Ex. Board,
Hunt, 20, 185, 192, 197, 198,
Morris & Essex R. R. Co., 592,
An
Young, 165, 192,196, 197,787,
y
3.
9
&
| Stearns v. Marsh, 890.
Steele v. Benham, 883.
Steele v. Dixon, 925.
Steele V. Steele, 655.
Stein v. Stein, 651.
Stenger Benev. Ass’n v. Stenger, 669.
Stephens v. Buell, 817.
Stephens v. Cody, 697, 698.
Stephens v. Tucker, 862.
Stephenson v. Insurance Co., 773.
Sterling v. Ryan, 797.
Sterling Hyd. Co. v. Williams, 993,
1015, 1016.
Stermer v. Board of Com., 487,491.
Sternberg v. O’Brien. 777.
Stetson v. Kempton, 522.
Stevens v. Davison, 576.
Stevens v. Gladding, 698.
Stevens v. Reynolds, 1005.
Stevens v. State, 459.
Stevens. v. Stevens, 634, 637, 643, 645,
648, 654.
Stevenson v. Westfall, 709.
Stewart v. Flowers, 1031.
Stewart v. Keteltas, 792.
Stewart v. Lansing, 890.
Stewart v. Platt, 879, 883.
Stewart v. Railroad Co., 770.
Stewart v. Robinson, 840.
Stewart v. Stewart, 657.
Stewart v. Stone, 893.
Stewart v. Supervisors, 464.
Stockdale v. Hamsard, 56, 58, 174, 182,
273, 277, 286, 613.
Stockdall v. Bartlet, 985.
Stockwell v. Bramble, 944.
Stockwell v. United States, 839.
Stoddard v. Gibbs, 982,
Stokes v. Little, 1126.
Stokes v. Saltonstall, 908.
Stoltz v. Doering, 674.
Stone v. Mississippi, 456.
Stone v. Moore, 1120, 1121, 1123, 1124.
Stone v. United States, 970.
Stoolfire v. Royse, 753, 754.
Stoops v. Smith, 729.
Storms v. Smith, 883.
Story & Isham Co. v. Story, 1134,
Stoudt v. Hine, 797.
Stoudt v. Shepard, 680.
Stowe v. Meserve, 882.
Stowe v. Tifft, 984.
Stowell v. Eldred, 816.
Stowell v. Raymond, 940.
Stowell v. Zouch, 39, 1038.
Strader v. Graham, 216.
Stranahan B. Co. v. Coit, 860.
Strander v. West Virginia, 293.
Strang v. Judge, 1060.
Straton v. Rastol, 1041.
Stratton v. Burr, 867.
Streety v. McCurdy, 1087.
Strickland v. Turner, 862.
TABLE OF CASES.
lvii
Peferences are to pages.
Strickland v. Willis, 873.
Strode v. Com., 466.
Stroeb v. Fehl, 981.
Strohm v. People, 1095.
Stuart v. West End St. Ry. Co., 849.
Stubbe v. Waldeck, 760.
Stucke v. Orleans R. Co., 849.
Stull’s Estate, In re, 642.
Sturgeon v. Board of Com., 560, 561.
Sturges v. Crowninshield, 392, 394,
749, 7S7, 789.
Sturgis v. Fourth Nat. Bank, 943.
Sturt v. Mellish, 1083.
Sturtevant v. State, 676.
Stutts v. Silva, 936.
Sullivan v. Manufacturing Co., 594,
Sulzbacher v. Bank, 947.
Sumerlin v. Livingston, 985.
Sumner v. Sleeth, 1105.
Sumner v. Williams, 738.
Supervisors v. Decker, 1060, 1116.
Supervisors v. State, 441.
Supreme Council v. Forsinger, 912.
Supreme Lodge v. Kutscher, 916.
Sutherland v. Reeve, 800.
Sutherland v. Sutherland, 983.
Sutton v. Warren, 451, 640.
Swain v. Seamans, 791.
Swan v. Buck, 446.
Swan v. Gilbert, 834.
Swan, In re, 274.
Swan Land Co. v. Frank, 1066, 1076.
Swannell v. Watson, 723, 933,
Swanzey v. Moore, 845.
Sweeney v. Easter, 1133.
Sweet v. Syracuse, 695.
Sweitzer v. Heasley, 747.
Swift v. Tyson, 248,865.
Swigart v. People, 780, 782.
Switzer v. Skiles, 812. -
Sylvester Bleckley Co. v. Alewine,
940.
Syrºe Rnitting Co. v. Blanchard,
T.
Taber v. Hamlin, 884,
Tabler v. Wiseman, 1011.
Talamo v. Spitzmiller, 990.
Talbot V. Jansen, 19, 187.
Talbot v. Seeman, 412.
Talbot v. State Crinn. Ct. of App.,
345.
Talbot v. Stemmons, 745.
Talcott v. Henderson, 873.
Talcott v. Wabash R. Co., 906.
Talty v. Freedman Tr. Co., 892.
Tanner v. Robert, 985.
Tappan v. Blaisdell, 833.
Tate v. Com. Bldg. Ass'n, 911.
Taunton Co. v. Whiting, 570, 583.
Taussig v. Hart, 813.
Ashton, 726.
Bowers, 785.
Taylor v. Castle, 563.
Taylor v. De Buss, 989. *
Taylor v. Downey, 898, 907.
Taylor v. French, 254.
Taylor v. Hoode, 967, 975, 976, 1000,
1009. º
Taylor v.
Taylor v.
Taylor v.
Taylor v.
Taylor v.
Taylor v.
Taylor v.
Insurance Co., 719.
McClung, 709.
P. K. & Y. Ry. Co., 1085.
Perkins, 828. »
Porter, 156, 439, 472.
Taylor v. Root, 708, 793.
Taylor v. Taylor, 831.
Taylor, In re, 646.
Teal v. Walker, 768.
Teall v. Felton, 528.
Tearney v. Smith, 524.
Teeters v. Lamborn, 740.
Teft v. Stewart, 1076.
Tegler v. Shipman, 868.
Telford V. Patton, 951.
Temple v. Janner, 1009.
Tenney v. Foote, 784, 839, 840.
Tennessee v. Davis, 72, 157, 242, 457,
1098. - - -
Tennessee Mfg. Co. v. James, 709.
Terre Haute R. R. Co. v. Sherwood,
902.
Terrett v. Taylor, 273, 438, 504, 514.
Terry v. Little, 594.
Terry v. Monger, 1062.
Teter v. Teter, 645, 646, 647, 653.
Tewksbury v. Spruance, 813.
Texas v. White, 95, 165, 194, 197, 209.
229, 428. -
Texas & P. R. Co. v. Int. C. C., 904.
Thalimer v. Brinkerhoff, 764, 768.
| Thatcher v. Powell, 1029.
Thatcher v. The W. River Bank, 931,
934. *
Thelan v. Thelan, 659.
Thirkfield v. Cem. Ass'n, 963. ,
Thirty-Second Street, In the Matter
of, 1010.
Thomas v. Boston & P. R. R. Co., 895.
Thomas v. Com. N. Ass. Co., 915.
Thomas v. Dakin, 491, 562, 575.
Thomas v. Gay, 338.
Thomas v. Hinsdale, 528.
Thomas v. Osborn, 910.
Thomas v. Phila. R. R. Co., 908.
Thomas v. Ritchie, 1001. -
Thompson v. Bowie, 1134, 1137.
Thompson v. Davenport, 815, 816.
Thompson v. Dorsey, 675. -
Thompson v. Gould, 742, 861, 862.
Thompson v. Harlow, 892.
Thompson v. Hermann, 847.
Thompson v. Lacy, 896.
Thompson v. Lockwood, 726.
| Thompson v. Mayor, 548.
lviii TABLE
OF CASES.
References are to pages.
Thompson v. Montgomery, 701.
Thºon v. People, 567, 596, 705,
Thompson v. Sloan, 936.
Thompson v. Thompson, 685.
Thompson v. Utah, 233, 239.
Thompson v. Ward, 1018.
Thompson v. Weller, 669.
Thompson v. Whitaker Iron Co., 1088.
Thompson v. Wooster, 1127, 1128.
Thoms v. King, 663. -
Thomson v. Davenport, 817.
Thorne v. Deas, 748.
Thorn’s Estate, In re, 672.
Thornborough v. Whitacre, 786.
Thornton v. Davenport, 865, 867.
Thornton v. Illinworth, 712.
Thornton v. Irwin, 813.
Thoº. Rutland & B. R. R. Co., 436,
4
50.
Thorp v. Thorp, 753.
Thurston v. Thurston, 660.
Tide Water Canal Co. v. Archer, 470.
Tieff V. Hewitt, 965.
Tiernan v. Jackson, 938.
Tighe v. Morrison, 739.
Tilden v. Barnard, 931.
Tilghman v. Proctor, 698.
Tilley v. Chicago, 718.
Timberlake v. Turner, 761. ---
Tindal v. Wesley, 289.
Titus v. Maybee, 961, 963.
Todd v. Clapp, 711.
Todd v. Mitchell, 725, 1067, 1079.
Todd v. Mizner, 1106.
Tolbert v. Burke, 1136.
Toledo v. Cone, 549.
Toledo v. Hasler. 556.
Toledo, A. A. & N. M. R. Co. v. Penn-
sylvania Co., 361.
Toledo, etc. Ry. Co. v. Beggs, 909.
Toledo, etc. Ry. Co. v. Hamilton, 901.
Tolman v. Reed, 768.
Tompkins v. Elliot, 753.
Torrey v. Bank of Orleans, 590.
Torry v. Bryant, 1074.
Tower v. Railroad Co., 900.
Towle v. Raymond, 894.
Town of E. v. Kohn, 933.
Town of Harlem v. Emmert, 523.
Town of Waltham v. Kemper, 522.
Townsend v. Deraynes, 831.
Townsend v. Long, 739.
Townsend v. Rackham, 798,
Townsend v. Vanderwerker, 1083.
Townsend v. Water Co., 746.
Towsley v. Sumrall, 946.
Tracy v. Alvord, 738.
Tracy v. Swartwout, 434.
Tracy v. Wood, 907.
Trade Mark Cases, 700. .
Tradesman's Nat. Bank v. Kent Mfg.
Co., 895.
Travers v. Ross, 1123.
Travis v. Bishop, 882.
Treadwell v. Brown, 833.
Trehon v. Brown, 249.
Tremolo Patent, 1119.
Trish v. Newell, 714.
Trist v. Child, 772.
Trombly v. Humphrey, 474.
Troth v. Robertson, 975.
Trowbridge v. Cross, 831, 984, 986.
Truell v. Granger, 991.
Trumbull’s Case, 293.
Trust Co. v. Shufeldt, 948.
Trustees v. MacIver, 446.
Trustees v. McClure, 994.
Trustees v. Woodward, 452, 454, 496,
504, 507, 597.
Tua v. Carrier, 390, 396,
Tucker v. Adams, 1012, 1014.
Tucker v. Moreland, 711.
Tucker v. United States, 366.
Tuffree v. Polhemus, 1081.
Tufts v. Brace, 872.
Tufts v. Plymouth Co., 741.
Tugman v. Chicago, 447.
Tunesma v. Schuttler, 1071, 1077.
Turner v. Baker, 1011.
Turner v. Bank, 1099.
Turner v. Gaither, 710.
Turner v. P. & S. Ry. Co., 928, 934.
Turner v. Trustees, 875.
Turner, In re, 678.
Turnpike Co. v. Field, 1068, 1070.
Turpin v. Burgess, 322.
Tuthill v. Wilson, 805.
Tutt v. Brown, 1104.
Twin City Bank v. Nebeker, 374.
Twin Lick Co. v. Marbury, 590.
T. W. & W. Ry. Co. v. McLaughlin,
1060, 1116.
Tyler v. Defrees, 411.
Tyler v. Sanborn, 813.
Tyler v. Tyler, 641.
TJ.
U. & S. R. Co. v. Brinckerhoff, 746.
Tlrich v. City of St. Louis, 549.
Underwood v. Brockman, 721.
Union Bank v. Geary, 747.
TJnion Bank v. Hyde, 945.
Union Exp. Co. v. Graham, 899.
Union Gas Co. v. Harroll, 915.
Union Mut. L. Co. v. Reil, 583.
Union Mut. L. Ins. Co. v. Hanford,
920.
Union Pac. R. R. Co. v. Cheyenne,
337. -
Union Pac. Ry. Co. v. Wyler, 1060,
Union Stock Yards & T. Co. v. Mal-
lory, 907.
Uniº Trust Co. v. Rigdon, 888, 891,
92.
TABLE OF CASES.
lix
Beferences are to pages.
Onited States v. Addyston Pipe, etc.
Co., 775, 777, 778, 779, 780.
RUnited States v. American Tobacco ||
Co., 917.
TJnited States v. Anthony, 625.
United States v. Arredondo, 1108.
United States v. B. & M. Ry. Co.,
424.
Ballin, 443, 446.
United States v.
'United States v. Berdan Arms Co.,
699.
|Booth, 158.
RJnited States v. Buchanan, 731.
TJnited States v. C. P. Ry. Co., 970.
United States v. Cruikshank, 157,604,
United States v. Des Moines, 1121.
TJnited States v. De Witt, 355.
United States v. Elliott, 360.
TJnited States v. Fletcher, 409.
United States v. Fox, 971.
TJnited States v. Gratiot, 231.
United States v. Hack, 833.
United States v. Harris, 605, 629.
United States v. Holmes, 610.
TUnited States v. Isham, 952.
United States v. Joint Traffic Ass'n,
356, 357, 594.
United States v.
TJnited States v.
778, 779,780.
United States v.
United States v.
United States v.
United States v. Power, 899.
United States v. Prescott, 531.
United States v. Railroad Co., 319,
320, 321.
United States v. Repentigny, 604.
'United States v. Rogers, 367, 601.
United States v. Sayward, 1099.
United States v. Schooner Peggy,
242.
TJnited States v. Tingey, 530.
United States v. Trans-Missouri
Freight Ass'n, 356, 779, 780.
Jnited States v. Union Pac. Ry. Co.,
413, 420, 421, 423.
TJnited States v. Wilson, 390.
Jnited States v. Wong Kim Ark,
606.
{United States v. Worrall, 250, 297,
1098.
'United States Bank v. Dandridge,
805.
TJnited States
Bank, 597.
(United States Life Ins. Co. v. Shat-
tuck, 1101.
*University v. People, 393.
Opdegraph v. Com., 630.
Updike v. Wright, 551.
Upton v. Suffolk Co. Mills, 870.
*Upton v. Tribilcock, 724, 733, 734.
Urmston v. Whitelegg, 778.
United States v.
Kagama, 234.
Enight Co., 461, 775,
Linn, 737.
Perkins, 466.
Peters, 168.
Bank v. Planters’
W.
Valentine v. Canali, 711.
Valentine v. Jackson, 989.
Van Aernam v. Bleistein, 566, 839.
Van ºn v. American Nat. Bank,
1084.
Van Bokkelen v. Taylor, 737.
Vanºcklin v. Tennessee, 215, 232,
Vance v. Vandercook, 340, 349, 350,
353, 354.
Van Deusen v. Sweet, 715.
Van Dorn v. Horton, 1033.
Van Duzor v. Allen, 868,
Van Horn V. Van Horn, 845.
Van Horne's Lessee v. Dorrance, 158,
185, 262, 442, 468.
Van Keuren v. Parmelee, 821.
Van Ness v. Packard, 964.
Van Norden v. Morton, 1086.
Van Rensellaer v. Dennison, 956, 958.
Van Voorhis v. Brintnall, 658.
Van Wyck v. Allen, 419, 870, 871.
Varble v. Bigley, 899.
Varney v. Stephens, 979.
Varrick v. Smith, 472.
Vassar v. Camp, 719.
Vasse v. Smith, 710.
Vaughn v. Huldennan, 964.
Venº Bank v. Fenno, 333, 379, 380,
949.
Vechte v. Brownell, 995.
Vegelohn v. Guntner, 1086.
Veginnman v. Morse, 850.
Venº v. Atchison, T. & S. F. R. Co.,
576.
Vidal v. Girard, 534, 997.
Vigus v. O’Bannon, 1069.
Village of Winooski v. Gokey, 476.
Virginia v. Rives, 116, 293.
Virginia v. West Virginia, 427.
Virginia, In re, 51, 113, 154, 157,
1035
Virginia Coal Company v. Roberson,
985.
Virginia Hot Springs Co. v. Harrison,
718
Viterbo v. Friedlander, 991.
Vogt v. People, 700.
Von Hoffman v. City of Quincy, 787,
789.
Von Kettler v. Johnson, 1033.
Von Platen v. Krueger, 713.
Voorhees v. Voorhees, 634, 636, 643,
645, 646, 648, 649, 657.
Vosberg v. Diefendorf, 931.
Vosburgh v. Teator, 1011.
Vose v. Grant, 1052,
Vreeland v. Vreeland, 663.
Vrooman v. Turner, 797.
Vulcan Powder Co. v. Hercules
Powder Co., 778.
Ix
TABLE OF CASES.
References are to pages.
W.
Wabash, etc. Ry. Co. v. Jaggerman,
905
Wabash Ry. Co. v. Defiance, 554.
Wabash Ry. Co. v. Hughes, 483.
Wade v. Mason, 893.
Wadhams v. Gray, 1069, 1080.
Wadsworth v. Connell, 685.
Wagoner v. Evans, 338.
Wain v. Warlters, 741.
Wainright v. Straw, 922.
Walcutt v. Gaskins, 846.
Walden v. Com., 845.
Waldron v. Johnson, 782, 783.
Waldron, In the Matter of, 676.
TVWales v. Stetson, 393.
Wales v. Whitney, 410.
Walker v. Brown, 717, 748.
Walker v. Counant, 797.
Walker v. Cronin, 592.
Walker v. Devereaux, 1106.
Walker v. Fitts, 989.
Walker v. Gilbert, 1120.
Walker v. Gray, 710.
Walker v. Johnson, 740.
Walker v. Lake Shore & M. S. Ry.
CO., 856.
Walker v. Powers, 1063, 1107.
Walker v. Tucker, 786, 793.
Walker v. Wait, 825.
Walker v. Walker, 669.
"Walker v. W. T. CO., 731.
Wall v. De Mitkiewicz, 802, 868.
Wall, In re, 1031.
Walla Walla v. Water Co., 502, 551,
556, 600.
Wallace v. Harris, 727.
Wallace v. Morse, 710.
Wallace v. Stone, 1084.
Walling v. Potter, 897.
YWalsh v. Adams, 826, 833.
VWalsh v. Pickard, 99.
Walston’s Case, 461.
Walter v. Ross, 877.
Walters v. People, 988.
Walters v. Texas B. & L. Ass'n, 560.
Walton v. Walton, 657.
Ward v Davis, 563.
Ward v. Farwell, 1046.
Ward v. Ward, 1021.
Ward v. Williams, 805.
Ware v. Allen, 1139.
Ware v. Hylton, 86, 126, 178, 179, 185,
186, 209, 241, 242, 428, 496.
Waring v. Betts, 947.
Warner v. Beers, 499, 500, 501, 562.
Warner v. Hale, 742.
Warner v. Hoisington, 989.
Warner v. Martin, 863, 866.
Warner v. The People, 277.
Warner & Post v. Griswold, 827.
Warren v. Buckminster, 863.
Warren v. Chapman, 765.
Warren v. Warren, 670, 691.
Warten v. Strane, 864.
Washbon v. Cole, 1085.
Washington Ice Co. v. Shortall, 962.
Washingtonian Home v. Chicago,
502, 507, 555.
Wasson v. Hawkins, 949.
Waterbury v. Mer. U. Exp. Co., 564,
569.
Water Power Co. v. Water Commis-
sioners, 369, 370, 1020.
Watkins v. Thornton, 982.
Watkins v. West Wytheville L. & I.
Co., 723.
Watkyns v. Watkyns, 663.
Watriss v. First Nat. Bank, 964.
Watson v. Jones, 257, 461.
Watson v. Mercer, 453.
Watson v. Penn, 1076.
Watson v. Sherman, 806.
Watson v. Silsby, S73.
Watson v. Sutherland, 1086.
Watson v. Union Steel Co., 804.
Watson v. White, 738, 791.
Wattles v. S. Omaha I. Co., 991, 992.
Watuppa Co. v. Fall River, 1019.
Waugh v. Carver, 820, 828.
Wayde v. Luer, 792.
Wayman v. Southard, 447.
Waymire v. San F. & S. M. Ry. Co.,.
5S8. - *
Webb v. Branner, 686.
Webb v. Claverdam, 1084.
Webber v. Howe, 766.
Webber v. Virginia, 699.
Webster v. Cobb, 941.
Webster v. Town of Harwinton, 441,
518, 519, 520, 522.
Weed v. Saratoga & S. R. R. Co.,906.
Weeks v. Leighton, 709.
Weeks v. McNulty, 907.
Wehrman v. Conklin,
1083.
Weigley v. People, 588.
Weightman v. Clark, 521.
Weightman v. Washington, 549.
Weimer v. Bunbury, 281, 283, 450.
Weise v. Tate, 527.
Weisert v. Muehl, 917.
Weisinger v. Cock, 1018.
Welch v. Goodwin, 814.
Welch V. Rutland, 549.
Welch v. Taylor Mfg. Co., 944.
Welch v. Wadsworth, 352.
Weller v. Gov. of F. Hos., 510.
Wellman v. Board, 553.
Wells v. Alexander, 864.
Wells v. Bain, 169, 192, 1036.
Wells v. Barley, 731.
Wells v. Cook, 725.
Wells v. Yates, 1071.
Wells, Ex parte, 431.
Welsbeck v. Glass, 1060.
Welsh v. Carter, 864.
1077, 1081,
TABLE OF CASES.
lxi
Whitehead v. Kitson, 1086.
Whitehead v. Peck, 798.
Whitehead v. Walker, 246.
Whitehill v. Jacobs, 577, 578.
Whiteside Co. v. Burchett, 1107.
Whiting v. Ohlert, 740.
Whitney v. Dutch, 710.
Whitney v. Fairlands, 1107.
Whitney v. Lewis, 1015, 1016.
Whitney v. Mayor, 1127.
Whitney v. Mer. Union Ex. Co., 811.
Whitney, In re, 520.
Whitney Arms Co. v. Barlow, 560.
Whitsett v. Pre-emption Church, 747.
Whittenton Mfg. Co. v. Staples, 992.
Whit, well v. Willard, 1076.
Wick v. Dawson, 1088.
Widoe v. Webb, 766.
Wiggins v. Williams, 1085.
Wight v. United States, 904.
Wightman v. Wightman, 637, 640,
References are to pages.
Welsh v. Wray, 508.
Wendt v. Vogel, 773.
wegº Coal Co. v. Holmquist, 849,
54.
Wentworth v. Day, 889.
Wesner v. O’Briem, 663.
West, etc. Bronze Co. v. Portrey, 792.
West, etc. Co. v. Adams, 858. -
Westcott v. Fargo, 269, 564, 569.
Westcott v. Sharp, 797.
Western Union Tel. Co. v. Kline,
1139.
Western |Union Tel. Co. v. Taggart,
Westlake v. Westlake, 670.
Weston v. Hunt, 267.
W. S. Elec. Ry. Co. v. Stickney, 255.
W. & St. L. Ry. Co. v. Rector, 909.
Westville Coal Co. v. Schwartz, 849.
Wetmore v. Tracy, 282.
Wetmore v. Wetmore, 663.
Whaley v. Cadman, 986.
Wheat v. Cross, 719.
Wheat v. Owens, 985,
Wheaton v. Fay, 724,
Wheaton v. Hibbard, 727, 785.
Wheaton v. N. B. Ins. Co., 914.
Wheaton v. Peters, 250, 697.
Wheeler v. County of Wayne, 559.
Wheeler v. Frankenthal, 739, 740.
Wheeler v. Gage, 987.
Wheeler v. Hotchkiss, 983.
Wheeler v. McGuire, 808.
Wheeler v. Newbould, 890.
Wheeler v. Pullman I. & S. Co., 586,
595.
Wheeler v. Reed, 814.
Wheeler v. Selden, 867.
Wheeler v. Traders’ Ins. Co., 915.
Wheeler v. Wayne Co., 522.
Wheeling v. Campbell, 965.
Wheelock v. Noonan, 1091.
Whereatt v. Ellis, 920.
Whippen v. Whippen, 641, 642.
Whipple v. Parker, 740.
Whitaker v. Hawley, 991.
Whitbeck v. Cook, 1016.
Whitbeck v. Estate of Ramsey, 765.
Whitcomb v. Duall, 1129.
White v. Arndt, 964.
White v. Atkin, 761, 859.
White v. Barker, 783.
White v. Buss, 767.
White v. Cole, 878.
White v. Franklin Bank, 785, 931.
White v. Hart, 164, 167, 189, 190, 195,
197, 288, 428.
White v. Murtland, 680.
White v. National Bank, 950.
White v. Nellis, 679.
White v. Platt, 890.
White v. Weaver, 940.
White v. White, 1082.
Whitehead v. Anderson, 877.
} Williams v.
655.
Wigly v. Mobley, 688.
Wikoff v. Core, 1053.
Wilbanks v. Untriner, 988.
Wilbur v. Warren, 730.
Wilcox v. Chicago, 549.
Wilcox v. Hogan, 907.
Wilcox v. Howland, 726.
Wilcox v. Jackson, 971.
Wilcox v. Middlesex Co., 333.
Wilcox v. People, 481, 482.
Wilcox & G. Co. v. Phoenix Co., 570.
Wild v. Hobson, 1089.
Wild v. Paterson, 549.
Wild’s Lessee v. Serpell, 337.
Wilder v. Cowles, 814.
Wilder v. St. Paul, 1010,
Wilder v. Weakley’s Estate, 715.
Wiles v. Maddox, 833.
Wiley v. Baumgardner, 777.
Wilhelm's Appeal, 1082.
Wilkinson v. Black, 760.
Wilkinson v. Board, 553.
Wilkinson v. Leland, 273, 437.
Wilkinson v. Tousley, 781.
Willard v. Bridge, 895.
Willard v. Masonic E. A. Ass'n, 915,
Willard v. Reinhardt, 894, 896.
Willard v. Wood, 795.
Willard's Appeal, 1102.
Willets v. Burgess, 753, 934.
Willets v. Hatch, 890.
Willett v. Blanford, 837.
Willey v. Allegheny City, 907.
Williams v. Ball, 1033.
Williams v. Bayley, 772.
Williams v. Esten, 1010, 1014, iOlö.
Williams v. German Mut. F. Co., 584.
Williams v. Jones, 987.
Williams v. Lawrence, 832.
Williams v. Leland, 277.
Williams v. Lewis, 834.
Mississippi, 607, 623.
lxii
TABLE OF CASES.
References are to pages.
Williams v. Morris, 742.
Williams v. People, 449.
Williams v. Wilcox, 369.
Williams v. Williams (Wis.), 648.
Williams v. Williams (N. Y.), 661.
Williams, Brown & Co. v. Leslie, 869.
Williamson v. Barry, 861.
Williamson v. Jones, 962, 980.
Williamson v. Keokuk, 476.
Williamson v. N. J. S. R. Co., 963, 964,
Willingham v. Veal, 866.
Willis v. Central Ry. Co., 574.
Willis v. East T. & B. Co., 1002.
Willis v. Green, 947.
Willock v. Pa. R. Co., 900.
Wills v. Sutherland, 564.
Willson v. Black Bird Creek Marsh
Co., 348, 471.
Wilmerding, In re, 466.
Wilmington W. P. Co. v. Evans, 994,
Wilson v. Bigger, 716. -
Wilson v. Johnson, 1060.
Wilson v. Little, 890.
Wilson v. Mallett, 1074, 1076.
Wilson v. Sioux M. Co., 848.
Wilson v. T. & S. Mills, 856.
Wilson v. White, 1001.
Wilson v. Wilson, 663, 1120.
Winback v. First Nat. Bank, 715.
Winchester v. Howard, 709.
Winchester Arms Co. v. N. Y. & N. EI.
Ry. Co., 1060, 1061.
Windett v. Hurlbut, 725, 1067, 1079.
Windon v. Stewart, 686.
Windsor v. McVeigh, 1028, 1108.
Winfield v. Henry, 1017.
Winslow v. Jenness, 1107.
Winspear v. Dist. Tp. of Holman,
491.
Winter v. Claitor, 1123.
TVWintermute v. Clark, S97.
Wiscat v. Danehy, 1035.
Wise v. Foot, 727.
Wise v. Withers, 434.
Wiseman v. Vandeputt, 875.
"Witbeck v. Waine, 730.
"Withers v. Green, 738.
Witherspoon v. Duncan, 320.
Wither wax v. Riddle, 722,
Wittkowski v. Harris, 808.
Witty v. Mich. Mut. Ins. Co., 935,
Wolcott v. Studebaker, 850.
Wolf v. Boettcher, 557.
Wolf v. Dietzsch, 869, 870.
Wolf v. Fletemeyer, 730.
Wolf v. Howe, 844.
Wolf v. Wolf, 981.
Wolfe v. Homer, 758.
Wolke v. Fleming, 740.
Wolsey v. Chapman, 418.
Wood v. Boynton, 720.
YWOOd v. Crocker, 904.
Wood v. Lake, 785, 931.
Wood v. Railway Co., 424.
Wood v. Whelan, 561, 584,
Woodhull v. City of New York, 548.
Woodruff v. Mississippi, 382.
Woodruff v. Taylor, 142, 1036, 1037.
Woºn Sleeping Car Co. v. Diehl,
898. .
Woodstock Co. v. Richmond Co., 769,
773.
Woodward v. Cutter, 893.
Woodworth v. Huntoon, 785.
Wooten v. Walters, 756, 761.
Worcester v. Georgia, 164, 168, 190,
234.
Worcester v. Mordant, 676.
Worden v. Dodge, 935.
Worden v. Salter, 938.
World's Col. Exp. v. Scala, 1061.
Worrall v. Munn, 806, 1014.
Worrall v. Forsyth, 738, 791.
Worthy v. Tate, 1068,
Wren v. Wren, 985.
Wright v. Blakeslee, 335.
Wright v. Brosseau, 931.
Wright v. Campbell, 937.
Wright v. Gay, 999.
Wright v. Grover, etc. Co., 924.
Wright v. Hayes, 666.
Wright v. Hooker, 827.
Wright v. People, 560.
Wyatt v. Larimer, etc. Co., 977.
Wylie v. Coxe, 1031, 1032.
Wynehamer v. People, 126, 127, 151,
330, 450, 459, 496, 622, 694, 799,
861, 1025.
Wynkoop v. Wynkoop, 681.
Y.
Yarbrough, Ex parte, 9, 51, 190, 262,
293, 300, 307, 427.
Yates v. Milwaukee, 467.
Yates v. Stuart's Adm’r, 1122.
Ye Seng Co. v. Corlitt, 815. -
Yick Wo v. Hopkins, 607, 612, 620,
621, 623.
Yocum v. Smith, 942.
Young v. Argo, 869.
Young v. College of Physicians, 683.
Young v. Commissioners of High-
ways, 523.
Young v. Connolly, 530.
Young v. Dake, 740.
Z.
Zabriskie v. Hackensack Ry. Co., 573,
574.
Zabriskie v. Smith, 801, 803.
Zeliff v. Jennings, 667.
Zell v. Dunkle, 892.
Zellner v. Mobley, 895.
Zogbaum v. Parker, 803.
AMERICAN LAW.
AMERICAN LAW.
ſ ſ #º gº --
The People. The States (ch. VIII). Systems of law.
s Legislative (chs. XIII-XX).
N gºal (chs. * Executive (ch. XXI).
blic (ch. VI tº ( Judicial. L lat (ch
Public (ch. VI). - 1. General state egislative (ch. XXII).’
Magistrates. | Stat Officers. ºve (ch. XXIII).
a Ue. e
- 2. Local state { Public corporations (ch. XXIV).
Pº. l OfficerS. Municipal corporations (ch. XXV). ,
+ §. or per- U ^s. §: corporations (ch. XXVI). .
sonal rela- ſ Several Classes (ch. iºns
tions, pp. 74, XXVII). Citizens."
93, and ch. IV. | Áliens."
Political rights.
Private. | Civil Rights(ch. XXVII). jº tºº.
Equality.
- | e g Husband and wife.
MUNICIPAL LAW, i. e. Pºlations ºn ºn
l Apprentices.
ſ e Chattels.
ſ Species. } ChoSeS. +
pe - ſ Parties, p. 708.
- - ASSent, p. 717.
*. Elements of. Eorm, p. 727.
- Consideration, p. 743.
Subject-matter, p. 763.
ſ Agency, p. 803.
& tract, p. 7 Partnership, p. 819.
THINGS (ch. XXIX). H Personal. - Modes of Transfer. J By Contract, p. 704. . ś *
Mortgage of chattels, p. 878.
Species of. 3 Bailments (outline), p. 887. '
- - | Innkeeper and guest, p. 907.
Common carriers, p. 908.
Insurance, p. 909.
t Guaranty and Surety, 917.
Devise or will. | Negotiable instruments, p. 925.
. ke | Descent.
t | Real Property. See Outline, ch. XXX, p. 954.
ſ ſ The Judicial Establishments. { National.
State.
Courts and Jurisdiction. :
JElements of Cawses.
ACTIONS (ch. XXXI). * Forms of Action.
Parties to Action.
Pleadings.
Practice.
Fºvidence.
l Appellate Jurisdiction and Procedure.
U CRIMEs. AND CRIMINAL PROCEDURE. (ch. XXXII).
INTERNATIONAL ( PUBLIC.
LAW (not treated). Y PRIVATE.
int #.explanation of this classification is made the subject of chapter IV. Every endeavor is there made to make this fundamental branch of jurisprudence clear and
elligible.
+It is to be regretted that a technical word must be employed, which does not in its popular sense express the exact idea, but which, like many other words, must be
read in the technical sense. Personoe denotes the condition arising artificially out of the social state, which attaches to the natural individual (homo), and constitutes what
Weterm status. See p. 93.
COMMENTARY ON AMERICAN LAW.
CEIAPTER I.
INTRODUCTION.
DEVELOPMENT OF THE SCIENCE OF LAw AND GovKRNMENT.
IFirst Period.
SEC. 1. Representative Government in Greece.— In tracing
briefly the development of jurisprudence, it is not to our pur-
pose to trace the evolution of society from the natural state
of the semi-savage man. Such a quest is entirely beyond the
Scope and purpose of the work, and the necessity for such a
task is dispensed with by the labors of such writers as Sir
Henry Maine and others of his school. Nor is it intended
to enter upon a metaphysical speculation upon the origin of
law and jurisprudence. This subject has likewise been treated
in such a variety of forms as to leave little to be desired. The
published lectures of James Wilson discuss this topic in a man-
ner acceptable to the publicists of the day." It will, however,
be the endeavor in the course of this treatise to trace princi-
ples of government and rules of law to their foundations, and
show their growth and change sufficiently to enable the student
to understand, and the lawyer to apply, the principle or rule in
the practical affairs of political or professional life. To that
end it is proposed in this chapter to trace as briefly as practicable
the development of the basic principles of political systems, and
notice slightly the evolution of applied jurisprudence, i. e., the
results of attempts to systematize the law.
Professor Dicey very truly remarks” that “a lawyer lectur-
ing on the constitution of the United States would necessarily
start from the constitution itself. But he would soon see that the
articles of the constitution required a knowledge of the Articles
11 Wilson's Works, 270. 2 “Law of the Constitution,” 4th ed., p. 15.
2 INTROIDUCTION. [Š 1.
of Confederation; that the opinions of Washington, of Hamil-
ton, and generally of the Fathers, as One sometimes hears them
called in America, threw light on the meanings of various con-
stitutional articles; and further that the meaning of the consti-
tution could not be adequately understood by any one who did
not take into account the situation of the colonies before the
separation from England, and the rules of common law, as
well as the general conceptions of law and justice inherited by
English colonists from their English forefathers.”
These observations point out but a part of the obligation of
One undertaking to give an adequate treatment of American
law; for, as will be apparent, the field of English law, wide as
it is and rich in the essential principles surviving in our law,
defines by no means the extent of necessary investigation. In-
deed, it may be safely asserted that many of the fundamental
principles of government have their sources elsewhere, and that
several most important principles of constitutional law are dia-
metrically opposed to the view of the same subject which pre-
vailed in England at the time of the American Revolution.
The most important of all these divergences of thought is the
differing conception of the nature of law and the province of
legislation, resulting in an essentially different expression of
the corpus juris from that adopted by Sir William Blackstone.
It will be unnecessary to here resort to arguments which were
formerly deemed necessary in order to disprove what is now
admitted by all American lawyers to be erroneous, viz.: the ex-
ploded theory relating to natural law, and the dogma that a
law to be binding must emanate from a superior." This subject
will be treated further on.
An examination of the subject is not, however, of historical
interest merely; it is essential to a clear understanding of the
prevailing view to make clearly the contrast between the old
idea as expressed by Puffendorf and quoted by Blackstone and
the accepted doctrine advocated by Locke and Montesquieu, and
maintained by our forefathers and explained in the Writings of
our jurists.
1 Chisholm v. Georgia, 2 Dall. 419– discussion of the question.” 1 Ham-
458. Dr. Hammond says: “It is in mond's Blk., p. 112, note. See 1 Wil-
the lectures of Judge Wilson that we son, pp. 59–160 et seq.
find the most explicit and thorough
§§ 2, 3.] INTRODUCTION. - 3
It will be useful to trace the development of the science of
jurisprudence, which now properly includes the science of gov-
ernment or the political or public relations of men, as well as
the science of law, in the narrow sense embracing only the law
of private relations. -
SEC. 2. Conflicting Views on the Basis of Government.—Ther
have been two schools of thought, as it were, the one in which
the only rule of government was based upon the natural law of
force, within which the science of private law was developed,
based upon reason and a spirit of justice.
Another school, with broader conceptions of the nature of
Society, bases the right of government upon the consent of the
governed;— a popular government but not necessarily a demo-
cratic One,"—and finding its practical application and most
perfect development in the principles of representation, which
principles are the foundations upon which the United States
government is based. These principles are gradually but surely
wearing away the ancient features of monarchial government.
Concerning the development of law, an able writer on juris-
prudence says: “At first only rights arising between subjects
are determined and protected by the law, whilst the sovereignty
remains above the law. Under barbaric despotism, the sover-
eign acknowledges no legal rule binding upon him in his con-
duct toward his subjects, . . but in time the relations be-
tween the government and the people become subject to certain
positive laws.”
SEC. 3. Consent and Representation.— The development of
philosophy caused the Greeks to seek for a reason for all things,
and to apply to all things the test of logical examination. This
spirit of reasoning pervaded all subjects, and naturally spread
to the problem of government and law as well as other subjects;
questioned old notions; shook from its foundations the notion of
ancestral right to rule; * planted the germs of political thought,
which bore the first fruit of popular government, taking actual
form in a constitution and a government based upon the con-
sent of the people, and whose sheet-anchor was the intelligence
1 Public good of the whole body of 8 Curtius’ Hist, Greece, vol.1, pp. 355,
the people the supreme object of the 356, 424, 425, vol. 2, p. 473; Gibbon’s
government. Federalist, No. 45. Decline and Fall, etc. 44.
* Heron on Jurisprudence, p. 70.
1
4. . INTRODUCTION.
[$ 3.
and morality of the people,' for in the assemblage of the citi-
zens (of Athens) wested the real political supremacy.” \
The principle of civic liberty—equality before the law — had
been asserted. To the whole people had been confided the
safety of the state and the supreme exercise of its laws.”*
“The Athenian state was a community of citizens among whom
no single family or class could assert particular rights or power.
All the citizens were equal before the law; each possessed his
civic franchise: . . free speech before the court and in
the assembled council of the people.” Public courts protected
citizens against officers. Personal liberty was guarantied by
right to give bail. “No law might be promulgated relating
to a single individual without applying equally to all.” “ These
laws were put in writing to be read by all. They stood on
pillars, and this was the Athenian popular government with
a written constitution.” “The good fortune of the Athenians
consisted in this: that instead of their possessing an uncertain
and formless idea of liberty, the liberty they desired was con-
tained in their ancient and legally-established constitution.”
“The admirable bearing of the Athenians is solely to be ac-
counted for by the laws of Solon, which, through all the troubles
of the times, had with invisible force educated the Athenians to
a free citizenship resting on the foundation of morality."
The Senate and Areopagus were representative of the peo-
ple — changing bodies, checks upon each other, and also against
popular passion.” -
In the sixty-third number of the Federalist, Hamilton, com-
menting upon the arguments pro and con in reference to the
principle of representation being the pivot around which the
1 Demosthenes’ Third Phillipic; treme one and must be confined to
Curtius’ Hist., vol.1, p. 424. See Wash-
ington's first Message to the Senate.
2 Curtius’ Hist. Greece, vol. 1, pp. 355,
356.
3 Id. -
4 Curtius, vol. 1, pp. 423, 424.
5 B. C. 594,
6 Curtius, vol. 2, p. 424.
7 Id., pp. 423, 424.
81 Curtius, pp. 356, 357. Compare
1 Kent, Com. *232, and notes. The
view of Professor Curtius is an ex-
the brightest period of Athenian law.
The analogy presented by the ancient
examples of representative govern-
ment was of dangerous utility in ar-
gument favoring, the formation and
adoption of the present constitution.
The authors of the Federalist were
correspondingly careful in reference
to the subject. The conclusion is
however just that the principle of
representation was first applied by
the Grecians.
§ 4.] INTRODUCTION. 5
-**
American commonwealth was moving, which was supposed by
some to have been unknown to the ancients, says: “I feel the
less restraint, therefore, in observing that the position concern-
ing the ignorance of the ancient governments on the subject of
representation is by no means precisely true in the latitude
commonly given to it. Without entering into a disquisition,
which would be here misplaced, I will refer to a few facts in
support of what I advance. . . . Prior to the reform of
Solon, Athens was governed by nine archons, annually elected
by the people at large. The degree of power delegated to
them seems to be left in great obscurity. Subsequent to that
period they formed an assembly, first of four and afterwards
of six hundred members, annually elected by the people and
partially representing them in their legislative capacity, since
they were not only associated with the people in the function
of making laws, but had the exclusive right of Originating leg-
islative propositions to the people.” He then refers to the
Senate of Carthage, the Ephori of Sparta, and the Tribunes
of Rome, and draws the following conclusions: “From these
facts, to which many others might be added, it is clear that the
principle of representation was neither unknown to the ancients
nor wholly overlooked in their political constitutions. The
true distinction between these (the ancient governments) and
the American governments (the Confederacy) lies in the total
exclusion of the people from administration in the former. The
distinction, however, thus qualified, must be admitted to leave
a most advantageous superiority in favor of the United States”
(the proposed constitution). &
This passage from the Federalist is one of the very few pas-
sages likely to confuse. It becomes plain enough, however,
if the reader considers the fact that the author was writing
about the old Confederacy and before the adoption of the pres-
ent constitution, and the point made by Hamilton is that, in
the Confederacy, the people collectively had no voice whatever
in the government.
SEC. 4. Divine Right of Sovereigns.— Greek philosophy in
other hands arrived at very different results. The advocate of
kingly power could point back to the very dawn of Grecian life,
and from their poet hero quote the words of Nestor, rebuking
the plebian who had raised his voice in opposition to the king:
6 INTRODUCTION. [$ 5.
“Be still, thou slave, and to thy betters yield; be silent, wretch,
and think not here allowed that worst of tyrants, an usurping
crowd. To one sole monarch Jove commits the sway. His are
the laws, and let him all obey.” Or, as put by another trans-
lator: “Ill for the common weal is the sway of many; let one
man rule and be king alone; from Zeus he holds his office.”
Through the mists of tradition, we perceive there, on the
sea-washed shore of ancient Ilium, begun the struggle between
these contending principles, and there to suit the tyrant’s ear
is set the song of the immortal bard of Hellas. So has it ever
been with power. Alexander had an Aristotle; James the
First a Bacon; and George the Third did not lack for advocates
in Parliament and in the great university of Oxford.”
SEC. 5. Slavery Accords with Natural Law.—Aristotle, the
Greek tutor of Philip's son, Alexander the Great, said: “If the
shuttle could weave by itself alone, one would not know what to
do with slaves. The slave is the man of another. Do there exist
men as inferior to other men as the brutes are? If they exist
they are destined to be slaves. There are men who have hardly
1 Thiad, book 1.
2 Speaking of the Commentaries,
the learned writer on the Constitu-
tion of England, A. V. Dicey, Q. C.
B., L.L., etc., says: “The arrangement
(of the Commentaries) is curious, and
certainly does not bring into view
the true scope or character of consti-
tutional law. This, however, is a
trifle. The book contains much real
learning about our system of govern-
ment; its true defect is the hopeless
confusion, both of language and of
thought, introduced into the whole
subject of constitutional law by
Plackstone's habit, common to all
lawyers of his time, of applying old
and applicable terms to new institu-
tions, and especially of ascribing in
words to a modern and constitutional
king, the whole, and perhaps more
than the whole, of the powers actu-
ally possessed and exercised by Will-
iam the Conqueror.” He quotes 1
Commentaries, page 249, and says:
“The language of this passage is im-
pressive; it has but one fault: the
Statements it contains are the direct
Opposite of the truth. . . . Nor
Can it be urged that Blackstone's de-
Scription of the royal authority was
a true account of the powers of the
king at the time when Blackstone
wrote. George the Third enjoyed far
more real authority than has fallen
to the share of any of his descend-
ants. But it would be absurd to
maintain that the language I have
stated (1 Blackstone, 249) painted his
true position. The terms used by
the commentator were, when he used
them, unreal and known to be so.
They have become only a little more
unreal during the century and more
which has since elapsed.” He cites
Paley's assertion of the wide differ-
ence between the actual state of the
government and the theory. The
“Law of the Constitution.” Dicey.
London: MacMillan & Co., 1893, pp.
7–9. t
§ 5.] INTRODUCTION. 7
enough reason to understand the reason of others, and the cor-
poreal labor is all they can produce; they are slaves by nature.”
The right of the powerful to rule needed no further argument.
Thus, we see in the Grecian land two streams of law whose
sources are each asserted to be in the fountains of nature; and,
to take a simile from Bacon, “Like as waters do take tincture
and taste from the soil through which they run, so do civil
laws vary according to the region and governments where they
are planted, though they proceed from the same fountains.”
The one, flowing through a soil impregnated with Wisdom
and Morality, continuing to be a pure stream of Liberty and
Justice; the other, passing through a soil rich in Knowledge
and Power, changing into a stream of Tyranny and Oppres-
Sion.
These two streams could not mingle; as well might it be
expected that the clear water of a pure stream could join with
the water of a muddy river and remain pure, as that the Mace-
donian Monarchy could enter the Amphyctionic League and
its nature not change; and as the sweet sweeteneth not the
bitter, but is itself made bitter, or the pure cleanseth not the
impure, but is defiled by contact, so the free states of Greece,
notwithstanding the struggle of Demosthenes, yielded up their
integrity, became corrupted by the gold of Macedon, and fell
a prey to the arms of the Barbarian; and thus passed into total
eclipse, almost oblivion, the first experiment of self-govern-
ment.”
Very aptly may a parallel be drawn between the cause of
the downfall of Athens and the vulnerable point in our own
scheme of self-government; if it fails, it must be through the
degenerating influence of a blunted morality. In the third
Phillippic, Demosthenes said: “Put what is the cause of the
mischief? There must be some cause, some good reason, why
Greeks were so eager for liberty then, and now eager for servi-
tude. There was something, men of Athens, something in the
hearts of the multitude then, which there is not now, which
Overcame the wealth of Persia and maintained the freedom of
Greece, and quailed not under any battle by land or sea, the
1 D’Lioy's Philosophy of Right, vol. 3 See Federalist, No. 18.
2, pp. 83, 84. *This expression, “Men of Athens,”
21 Bacon's Works, 238. cited 2 Dall, 472.
8 INTRODUCTION. [$ 5.
loss whereof has ruined all and has thrown the affairs of Greece
into confusion. What is this? Nothing subtle or clever; sim-
ply that whoever took money from aspirants for power, or the
corruptors of Greece, were universally detested; it was dread-
ful to be convicted of bribery.” . . . “But now all such
principles have been sold in open market, and those imported
in exchange, by which Greece is ruined and diseased, what are
they? Envy when a man gets a bribe, laughter if he confesses
it; mercy to the convicted; hatred to those that denounce the
crime, all usual attendants upon corruption.”
The senate replied to the first inaugural of Washington:
“We feel the force and acknowledge the justness of the obser-
vation (of Washington) that the foundation of our National
policy should be laid in private morality.”
And still more to the point is the warning of that grand old
patriot who, amid the storm of public strife and private threat
which characterized the period of the Revolution, maintained
the principles of Liberty. -
The second president, in his inaugural address, after review-
ing the first years of the republic and the pleasing spectacle
presented by the nation, thus reads the signs of the times: “In
the midst of these pleasing ideas, we should be unfaithful to
ourselves if we should ever lose sight of the danger to our lib-
erties if anything partial or extraneous should infect the purity
of our free, fair, virtuous and independent elections. If an
election is to be determined by a majority of a single vote, and
that can be procured by a party through artifice or corruption,
the government may be the choice of a party, for its own
ends—not of the nation, for the national good. If that soli-
tary suffrage can be obtained by foreign nations by flattery or
menaces; by fraud or violence; by terror, intrigue or venality,
the government may not be the choice of the American people,
but of foreign nations. It may be foreign nations who govern
us, and not we, the people, who govern ourselves. And can-
did men will acknowledge that, in such cases, the choice would
have little advantage to boast of, over lot or chance.”
In a recent opinion of the supreme court of the United States
Justice Miller thus expresses the same thought: “In a republi-
can government like ours, where political power is reposed in the
§ 5.] INTRODUCTION. 9
representatives of the entire body of the people, chosen at short
intervals by popular elections, the temptations to control these
elections by violence and by corruption is a constant source of
danger. Such has been the history of all republics; and though
ours has been comparatively free from both these evils in the
past, no lover of his country can shut his eyes to the fear of
future danger from both sources.” .
Here then in ancient Greece, before the empire of Rome was
established, and centuries before the age of Cicero, Gaius or
Justinian, the Grecian lawyers and politicians established a
system of government, based upon natural equality of men as
viewed by the aid of reason and philosophy, and in which is ap-
plied the same principles which modern political science accepts
as correct. Here then (unless there be some older claimant), so
far as the science of government is concerned, is the genesis of
jurisprudence; i.e., a system designed in accordance with logical
principles and in conformity to the dictates of right and justice
as those who established it were given to see right and justice.
IHowever deserving of praise is the civil law of Rome, and how-
ever much it has moulded the ideas of men, it has been fre-
Guently overlooked that the excellence of the Roman law is
confined entirely in its operation to the regulation of the private
affairs of individuals.”
On the other hand, as Grecian philosophy and Grecian art by
its reflex action moulded the manners and thought of Roman
law, so to-day the principles of Grecian policy hold sway in
this republic, and the reflex influence is felt in the remotest
parts of the world.”
! Exparte Yarbrough, 110 U.S. 652–
666.
principles are investigated with more
good sense, or declared and enforced
2 “The value of the civil law is not
to be found in questions which relate
to the connection between the gov-
ernment and the people, or in provis-
ions for personal Security in criminal
Cases. In everything which concerns
Civil and political liberty, it cannot
be compared with the free spirit of
the English and American common
law. But upon subjects relating to
private rights and personal contracts
and the duties which flow from them,
there is no system of law in which
with Imore accurate and impartial
justice. I prefer the regulations of
the common law upon the subject of
the paternal and conjugal relations,
but there are many subjects in which
the civil law greatly excels.” 1 Kent,
Conn. *547.
3In all the great lines of private
and public jurisprudence the legisla-
tors of Rome and Athens appear to
be strangers or adverse to each other.
Gibbon's Roman, ch. 44.
IO INTRODUCTION. [$$ 6, 7.
Second Period.
SEC. 6. The Roman System of Private Law—Gaius and Jus-
tinian.-As the Roman empire soon swallowed up the Grecian
state, we naturally turn our attention to the Roman law.
Bacon” says that “the Decumvirs laws (the XII Tables)
were laws upon laws not the original, for they grafted the laws
of Graecia upon the Roman stock of laws and customs; but such
was their success that the twelve tables which they compiled
were the main body of the law which framed and wielded the
great body of that estate.” Whether this is true or not * is only
interesting as it suggests to us that, if the Grecian branch of
private law was thus grafted upon the Roman tree, it simply
shows the plain distinction between the domain of public and
private law, and that a people may have an excellent code of
private law and no provision whatever or constitution securing
their political rights, saving only that elastic rule, ever chang-
ing according to the mind and heart of the administration—
Natural law, a thin disguise for the will of the monarch.
The student will remember that, while the laws of the twelve
tables were developing in Rome, the whole tree was perishing
in Greece, and the other branch of the law, viz., the political
constitution of Athens, based upon popular consent and morality,
and embodying the idea of representation, all pillars in the
American government, was not grafted upon any other stock,
but perished under the arms of Macedon. This Macedonian
empire in time became a part of the empire of Rome, and
was at the time of Justinian the seat of the Eastern empire; and
all that remained of Grecian laws, if indeed any there was, is
found in the Roman law of private right.
Practically a thousand years separates the Grecian period
from the age of Justinian.
SEC. 7. The Law of Nature.—Half a century before the
Christian era, Cicero, the exponent of advanced thought in phi-
losophy and law at Rome, declares that “Reason prescribes
the law of nature and of nations; and all positive institutions,
however modified by accident” or custom, are drawn from
1 Bacon's Works, vol. 2, p. 234; 1 mond's introduction to Sanders’ Jus-
Kent, Com. 52. tinian.
* Compare Gibbon, Decline and 3Divine Right of Kings and Slav-
Fall, Ch. 44, and Professor Ham- ery.
$ 8.] . INTRODUCTION. , 11
the rule of right, which Deity has inscribed on every virtuous
mind.”!
The translator of D’Lioy's Philosophy of Law says: “The
extension of the original jus civile by the jus gentium did not
change its character, and the jus naturale was only an alien
philosophical infusion introduced by Cicero and the jurists . . .
from the schools of Greece.”” -
Mackeldy says: “The scientific treatment of the law in the
period (from Cicero to Alexander Servius, 50 B.C. to 250 A.D.,
p. 24) attained its highest eacellence, which was particularly
owing to the connection of law with philosophy and Greek
literature.” 8
Sandars says: “Dy far the most important addition to the
system of Roman law which the jurists “introduced from Greek
philosophy was the conception of lea, naturae. We learn from
Cicero whence this conception came, and what was understood
by it.” . . -
SEC. 8. The Beginning of Legal Amalysis — Gaius.-Gaius.
was a lecturer and writer upon law of this period and adopts.
the prevailing theory—that of natural law having a binding
force. In respect to the principles of law, he being a faithful
commentator, makes no changes or additions. -
The renown of Gaius rests mainly upon his announcing the
principles upon which all legal analysis has subsequently pro-
ceeded. He recognizes as sources of law the law of nature
and the law of nations and the jus civile of the Roman." He
agreed with the other Roman jurists of the second century in
the assumption, “on the authority of Greek philosophy, that
there was a lea, naturaº binding upon them because it was a
lew,” and they endeavored to work up the dictates of this law
and the jus gentium, together with the provisions of the old
jus civile, into a whole." It was his discerning mind that saw,
whatever the source of the law might be, the whole body of
the law was subject to an arrangement upon another principle,
viz., the object operated upon by the rule: that to which the
law “relates” was the touchstone of analysis. This was show-
1 Gibbon, Decline and Fall, ch. 44, 5.Introduction to Sanders’ Justin-
p. 322. ian, p. 15. •”
2 Translator’s Preface, p. 11. 6 Sanders’ Justinian, Int., 25.
* Introduction to Roman Law, p. 32. 7 Id.
4 Jurisprudence, Introduction to
Sanders’ Justinian, p. 14. -
12 INTRODUCTION. [$ 9.
ing that this body of rules as a whole was capable of a separa-
tion into classes between which there was a natural relation,
and was a great step in the progress of the law as a science.
This is the splendid period in the development of scientific ju-
risprudence. Says Mackeldy: “The scientific treatment of the
law at this period' attained its highest excellence.”* Again
he says: “Jurisprudence, which had attained its meridian under
IHadrian, the Antonines and their immediate successors, soon
ceased to progress or to have life after the internal destruction
of the empire subsequent to the death of Alexander Severus.
All the science decayed, and the old Roman spirit expired be-
neath the oppression of despotism and the corruptions of
Im Orals.” ”
It may be truly said that the science of government never
under the Romans attained to the Greek model. There is still
one more period in the development of the science of law or
jurisprudence under the Romans, viz., the age of Justinian.
SEC. 9. Justinian and the Institutes.—Justinian’s merit, how-
ever, is not in the destruction of the old and invention of new
principles. In the Code and the Digest his agents or commis-
sioners compiled and collected, not all of the applications of
the principles of the preceding ages, but, as they supposed, all
the living principles of the Roman law. The compilation of the
Code and Pandects was, however, not his chief contribution
to the science of law, for in these there is little regard to sys-
tem and arrangement. An institutional word was needed in
order to facilitate the study of the law. He therefore caused
Tribonian, with the assistance of Theophilus and Dorotheus, to
prepare a brief system of law under the title of Institute, which
should contain the rudiments of jurisprudence.* This work was
professedly founded on the Institutes of Gaius, so that Justin-
ian’s Institutes are in fact no more than a new edition of that
work, which up to that time had been used as a first book for
the study of Roman law, much of which, however, was obsolete
at Justinian's time. In this new edition of Gaius' Institutes
the wholly obsolete matter was omitted.”
, 1 Of Cicero, Hadrian, and the An- 3 Mackeldy, Roman Law, Int., Sec.
tonines. Mackeldy, Roman Taw, Int., 60.
$40, p. 60. 4 See Sanders' Justinian, pp. 63–65.
*Mackeldy, Roman Law, Int., sec. 5 Mackeldy, Roman Law, Int., 60;
51. Sanders' Justinian, Int., Sec. 34, p. 2.
§ 9.]
INTRODUCTION. 13
The Institutes of Gaius and Justinian include in their treat-
ment of law only the domain of private law, though they rec-
Ognize that there is another branch of the law." The Institutes”
begin thus: Lib. 1, Tit. 1. A definition of justice. Section 1
defines jurisprudence. Sec. 2 speaks of the necessity and objects
of the Institutes.” Sec. 3, the maxim of the law. Sec. 4 pro-
ceeds: “The study of law is divided into two branches, that
of public and that of private law. Public law regards the gov-
ernment of the Roman empire. Private law, the interest of
individuals;”* and continues: “We are to treat now of the lat-
ter, which is composed of three elements, and consists of pre-
cepts belonging to natural law, to the law of nations, and to
the civil law.”
The analysis of the Institutes as to the kinds of law is
this: 8
THE CIVIL LAW
<
OF ROME.
1 Austin's Jurisprudence, 778.
*When this expression is used by
writers it is understood to refer to
those of Justinian unless expressed
Otherwise.
* “Having explained these general
terms, we believe we shall commence
Our exposition of the law of the
Roman people most advantageously,
if we pursue at first a plain and easy
path, and then proceed to explain
particular details with the utmost
Care and exactness. For if at the
OutSet we overload the mind of the
Student, while yet new to the subject
and unable to bear much, with a
multitude and variety of topics, one
of two things will happen—we shall
either cause him wholly to abandon
Public . . . . . . . . . . . "
IPrivate consists of
precepts belong- 4
ſ The silence of the book on what is
embraced in this domain is sim-
ilar to that of Bacon, post; and
See remarks upon by Blackstone,
- post, pp. —. Book 1, p. 238.
r 1. Natural law — Law of animal
being.
2. Taw of Nations — General law
of human well-being.
3. The Civil law — Roman mu-
S- nicipal law.
his studies, or after great toil and
often after great distrust of himself
(the most frequent stumbling-block
in the way of youth), we shall at last
Conduct him to the point to which,
if he had been led by an easier road,
he might, without great labor and
without distrust of his own powers,
have been sooner conducted.” 1–1–2.
4 Mark the language.
5 Institute, 1–1–4. This must not
be confounded with the principles
of analysis put in Gaius’ expression,
“All our laws relate to persons, to
things, and to actions.” Gaius, 1-8;
Inst., 1–3–1, which will be explained
further on, nor with the arrange-
ment based thereon.
14 INTRODUCTION. [$ 10.
The civil law had various sources or modes of promulgation.
1. A Lex. Strictly speaking, i. e., the decrees of the people
en masse." - -
2. By the Plebs.
. By the Senate.”
By the Emperor. A constitution.”
By the Praetor. The praetor's edict.”
By the Jurisprudens. Answer to questions."
. Ancient Customs." -
SEC. 10. The Origin of the Compact Theory.—The source
of power of the emperor is worthy of remark. “That which
seems good to the emperor has also the force of law; for the
people, by the lea, regia, which was passed to confer on him his
power, make over to him their whole power and authority.”
Gaius puts it thus: “A constitution of the emperor is, etc.;
e nor has there ever been a doubt as to this having the
force of a lew, since it is by a lew that the emperor himself re-
ceives his authority.”” -
This expression of Gaius differs from the idea of the divine
right of kings; but the doctrine promulgated by Justinian that
the people had surrendered, or made over to the emperor, all
the power of the Roman people, the swum? imperium, is very
similar to what is called the original-compact theory of sover-
eignty;" yet it recognizes consent as the true source of posi-
tive law,"—consent by submission, it is true.
A plebiscita.”
i
o *
in his Equitable Jurisdiction, speaks
of the origin of the theory of sover-
eignty as follows: “The reverence for
the Roman law, which had been tra-
ditionally handed down through the
clergy, independently of express
adoption, must have operated to fa-
1 Mackeldy's Roman Law (Dropsié),
17; Austin’s Jur. 530.
2 Inst. 1–2–4; Gaius, 1–3.
3 Id. 1–2–5; Id. 1–4.
4 Id. 1–2–6; Id. 1–5.
5 Id. 1–2–7; Id, 1–6.
6 Id. 1–2–8; Id. 1–7. These responses
were first called the unwritten law,
and subsequently the civil law. They
are the commencement of Roman ju-
risprudence. 1 Wilson's Works, 433,
434.
7 Inst. 1–2–9. Gaius omits mentio
of customs.
8 Inst. 1–2–6.
9 Gaius, 1–4.
10Inst. 1–2–6, Sanders' note. Spence,
cilitate its being so largely resorted
to when its stores were opened. The
most remarkable feature is that it
was taken as of imposing, if not of
governing, authority, even. On Consti-
tutional points. Glanville in his
preface, which is in part taken al-
most literally from that prefixed by
Justinian to his Institutes, notices
and explains the principle “Quod
11 Inst. 1–2–11.
See also 1 Black. Com., p. 237.
§ 11.]
INTRODUCTION. 15 .
There is a difference in the arrangement of Gaius and Jus-
tinian: the former divides the law into the jus gentium and the
jus civile; the latter divides the jus gentium, in accordance with
the idea of Ulpian, into the jus naturale, the jus gentium, and
jus civile — the jus gentium being appealed to as equity. Little
real use is made of the latter classification."
Lorimer, in his Institute, points out the distinction between
Gaius and the Institutes in accordance with the analysis given
above, Justinian simply adding the title Jus Naturale.
SEC. 11. Slavery Contrary to Law of Nature.—The Insti- |
tutes mark an important change of thought in regard to the
Origin of slavery. Lib. 1, tit. 2, sec. 2, says: “Wars arose, and
in their train captivity and slavery, which is contrary to the
law of nature, for by that law allmen are originally born free.”.”
This doctrine is the direct opposite of the doctrine of Aristotle.
The only explanation for this change is the influence of Chris-
tianity and a consequently modified conception of the law of
nature. Here then, in Rome, at the time of Justinian, the doc-
trine of the divine right of kings has given place to the prin-
ciple that the people have, by a compact of submission, made over
irrevocably to the emperor their whole power and authority,
and the institution of slavery is ranked as a misfortune of war
instead of the result of natural differences of capacity in human
beings.
principi placet legis habét vigorem,”
as if he were commenting on the
terms of an act of the English legis-
lature. Bracton follows exactly the
same course, fortifying the qualifica-
tions he introduces, not from na-
tional sources, but chiefly by refer-
ences to other passages from the
imperial laws. To this, namely, a
reference to the Rea: Legia and other
imperial doctrines, says Mr. Allen
(on Prerogative, p. 166), we may trace
the old doctrines of absolute sover-
eignty and transcendant dominion
which still disfigure our law books.”
1 Spence, Eq. Jur., *123.
1Inst. 1–2–11, Sanders’ notes; Mack-
eldy's Roman Law, p. 118, § 125.
2 In August, 1774, James Wilson
published his celebrated address to
the colonists, wherein he denies the
doctrine of an omnipotent parlia-
ment. In the course of his argument
he says: “All men are by nature
equal and free; no one has a right
to any authority over another with-
out his consent; all lawful govern-
ment is founded on the consent of
those who are subject to it. Such con-
sent was given with a view to en-
sure and to increase the happiness of
the governed above what they could
enjoy in an independent and uncon-
nected state of nature. The conse-
quence is that the happiness of the
society is the first law of every gov-
ernment.” 2 Wilson's Works, 507.
Compare this with the second clause
of the Declaration of Independence.
16 INTRODUCTION. [$ 12.
Professor Austin gives a just estimate of the Institutes as
follows: “It is merely a treatise upon private law. By con-
sequence criminal law with the law of political status is not
comprised by it; the classical jurists from whose elementary
works the Institutes were copied having thought that public
law was not a fit subject for an institutional or elementary
treatise. I know not why: for a knowledge of the constitu-
tion of the state is as necessary to a knowledge of private law
as the latter is to a knowledge of the constitution of the state.
All parts of the corpus juris are in truth so implicated with
One another that they cannot be separated.”" - •
Third IPeriod.
SEC. 12. The Rise of Feudalism and the Roman Hierarchy—
Allegiance and Sovereignty.— The civil law as it appears in
Outline in the Institutes of Justinian, or as it was presented in
the books of the Corpus Juris Civilis, had force and efficacy
for Only a short period, and, notwithstanding the pompous
flourish of the introduction, the dominion of the emperor ex-
tended over but a small portion of what had once been the mag-
nificent empire of Rome. The ancient capital was no longer his
capital; the ancient scepter had passed into “unlenial hands; ”
and in place of “Imperial Rome, the mistress of the world,” is
seen the Holy Roman Empire, and the kingdoms of Gaul, Italy
and France, while in the North is the Saxon, who never bowed
the neck to any man. -
At the beginning of the seventh century Alaric, king of the
Visagoths in Gaul, promulgated the Gothic Roman Code, “in
which the Roman and Gothic laws and usages should be formed
into one body of law for the general use of all his subjects.
This was accordingly done in the twenty-second year of his
reign, and from Anianus, his referendary or chancellor, by
whom it was either compiled or published, it was called the
breviarium Aniani. It is an extract from the Gregorian, Her-
mogenian and Theodosian codes, the novells of the subsequent
emperors, the sentences of Paullus, the Institutes of Gaius, and
the works of Papinian. It superseded the use of the former
laws so far that in a short time they ceased to be cited in the
courts or by writers on subjects of law, and Anianius' collec-
1 Austin’s Juris, vol. II, pp. 778–79.
§ 12.] INTRODUCTION.
17.
tion, under the name of the Roman or Theodosian law, became
the only legal work of authority.”
In Italy during the time it was held by Odoacre and his
successors, and until recovered by Justinian, the study of the
Roman law was never abandoned. The ancient laws were in
a large measure kept in force, and schools wherein the Roman
law was studied were supported by the Gothic rulers.”
Clovis, the founder of the French empire, who accepted his
crown at the hands of the Pope, naturally fell under the in-
fluence of the religion and law of Rome.
The ecclesiastical supremacy acquired over the people of
Western Europe involves one of the most important elements
in the study of the progress of the science of government.
The establishment of the canon law, and an ecclesiastical
jurisdiction over marriage, divorce, administration, and other
matters deemed spiritual, have had a material influence upon
English law and procedure. The establishment of the Chris-
tian hierarchy, with the seat of government at Rome, and as-
Serting its authority over distinct kingdoms or empires, was a
phenomenon new to history.
The ancient codes recognized a distinction between things
sacred or spiritual and things temporal; but until the establish-
ment of the Christian church no claim had been made of spirit-
ual power separate and distinct from the civil authorities of
the state, and insisting upon the right to interfere in civil affairs.”
1 Butler’s Horae Juridicae, 55.
*Holland, Institutes of Gaius, Int.,
XXX.
8 Guizot, in the History of Civiliza-
tion, says: In short, with the church
originated a great fact—the separa-
tion of spiritual and temporal power.
This separation is the source of liberty
of conscience; it is the foundation of
the most perfect and extended free-
dom of conscience. The separation of
temporal and spiritual power is based
upon the idea that physical force has
neither right nor influence over Souls,
over conviction, over truth. It flows
from the distinction established be-
tween the world of thought and the
world of action, between the world
of internal and that of external facts.
Thus, this principle of liberty of con-
science for which Europe has strug-
gled so much and suffered so much,
this principle which prevailed so late
and often in its progress against the
inclination of the clergy, was enun-
ciated, under the name of the separa-
tion of temporal and spiritual power,
in the very cradle of European civili-
zation, and it was the Christian
church which, from the necessity
imposed by its situation of defending
itself against barbarism, introduced
and maintained it. Page 45.
18 INTRODUCTION. [Š 13.
The distinction must be made between Christianity as a religion
and the Christian church as an Organization. -
The greatest political principle involved in this position of
the church was the distinction between things secular and tem-
poral, the logical sequence of which, worked out by slow de-
grees, is the separation of church and state.
SEC. 13. The Four Different Relations of Religion with So-
ciety.—In the Hebrew society, patriarch and priest are united in
One man, and the religious tenets and legal rules are one and the
same. The Romanistic idea distinguished between the church
and the state, and claimed that the church was superior to the
civil authority. The converse of this position finally became
the rule in England, and the sovereign claimed that the head
of the state was the head of the church. The doctrine, for the
first time acted upon in the United States, that religion and
civil government should be independent of each other, is the
crowning achievement of individual liberty.
Professor Baldwin, in an address before the American Bar
Association, in speaking of the epoch when church and state
first became separate, shows the contrasts suggested above in
the following language: • -
“Nowhere, until the last part of the eighteenth century, had
the state been kept totally separate from the institutions of re-
ligion. The original beginning of human society, in the fam-
ily, the clan, the tribe, made the patriarch also the priest. The
household gods were peculiar to the household; the national
gods to the nation. Religion was a part of patriotism. Rulers
might change; kings might give place to republican magis-
trates; but the national deities, the national worship, would
remain the same. Pro aris et pro focis was the watchword of
war. “Christianity came, and found the world subject to this
law. But the spirit of Christianity was universal, catholic, not
national. Its kingdom was not of this world. As, however, its
doctrines spread, and as some of them began to be but half
understood by those who taught them, government turned to
it for aid. It became a part of the imperial system; when that
fell, it conquered the conquerors, and for fourteen hundred
years was the stay of every civilized government in Europe and
America. -
1 Am, Bar Ass’n Rep. 1889, p. 242.
$14.] INTRODUCTION. 19
“The religious liberty for which the Puritans crossed the sea.
was simply liberty to make their form of religion the law of a
new community. Thode Island, with her utmost toleration,
allowed no Roman Catholic in public office until long after
the Declaration of Independence. In Protestant Europe, as in
Catholic Europe, the union of church and state remained un-
broken. Men had risen up against the tyranny of ecclesias-
tical power; men had pulled kings from their thrones and set up
others, or set up none. The same struggle against unjust gov-
ernment had sometimes been shared by those who attacked the
church and those who attacked the state. The same leaders
might indeed attack both, but they seldon attacked or ques-
tioned the union of both. In England the Puritans fought
against Episcopal, the republicans against royal, tyranny, but
both were ready to bind the commonwealth to another form of
mational religion. *.
“A state church had, no doubt, been long the scorn of athe-
ists and indifferentists, but it endured until religion itself rose
to the level of rejecting it; until Christianity came to see and
teach that there are two worlds about us — the world we live
in knowingly, the world of time, the world of the body and the
mind; and the world we live in unknowingly, the world of
eternity, the world of the spirit; that governments belong only
to the world of the present, with no larger life than it can
give; that they are less than the men they govern, and, when
they have sought to give laws to the human spirit, have opposed
themselves to the order of the universe.
“Modern government began when the state withdrew from
its long alliance with Christianity.”
SEC. 14. The Feudal System.— Side by side with, sometimes
handin hand with, the church, sometimes under its dominion, and
sometimes defying its decrees, existed the institution or theory
of government known as the Feudal System. Out of this sys-
tem, and as essential features of it, arose the doctrines of sover-
eignty and allegiance, with which we of the United States
contrast citizenship and patriotism; the peculiar mode of
1 The idea of allegiance, strictly contrast between feudal allegiance
speaking, is foreign to Our constitu- and federal citizenship is very well
tion, involving as it does the binding made in the argument in the case of
Of One man to another. Iman. The Talbot v. Janson, 3 Dall. 133, thus:
2
20 INTRODUCTION. [$ 15.
holding land, termed tenure, or feudal tenure; the English
notion of jurisdiction, which was based upon the idea that the
sovereign was the fountain of justice, and that no jurisdiction
could be exercised except by delegation from him, all of which
must be understood by any one who desires to master our juris-
prudence, and each of which must hereafter be fully treated.
The feudal system of government, with its essentialincidents,
is the political institution generally regarded as the most im-
portant product of this period. Inasmuch as the incidents of
feudalism must be examined more minutely in connection with
the nature of law and government, as well as contrasted with
our theory of property in land, it will suffice here to state the
manner of its origin and note the peculiar features of the insti-
tution which bear upon the subject of this introduction. Re-
mote as we are from the period when feudalism flourished, the
inquiry has a practical value and utility in investigating exist-
ing constitutions."
SEC. 15. Rise and Extent of Feudalism.—“In order to under-
stand the classes into which the two millions of human beings
who dwelt here at the time of the grant of the Great Charter
were divided, and the system of government which then existed,
a right comprehension of the principles of the feudal system is
“It is to be remembered that, whether
in its real origin or in its artificial
state, allegiance as well as fealty
rests upon land, and it is due to per-
sons. Not so with respect to citizen-
ship, which has arisen from the dis-
solution of the feudal system, and is a
substitute for allegiance Correspond-
ing with the new order of things.
Allegiance and citizenship differ, in-
deed, in almost every characteristic.
Citizenship is the compact; alle-
giance is the offspring of power and
necessity. Citizenship is a political
tie; allegiance is a territorial tenure.
Citizenship is the charter of equality;
allegiance is the badge of inferiority.
Citizenship is constitutional; allegi-
ance is personal. Citizenship is free-
dom; allegiance is servitude. Citi-
zenship is communicable; allegiance
is repulsive. Citizenship may be re-
linquished; allegiance is perpetual.”
The distinction between national
and feudal allegiance, and in fact,
the whole philosophy of allegiance
is ably discussed and applied in the
celebrated Allegiance Cases in South
Carolina. State v. Hunt, and Ib. v.
M’Meekin, 2 Hill (S. C.), 1. See 1 Wil-
son, Works, 279.
1 Having found in Creasy's Eng-
lish Constitution a very brief sketch
suited to the purpose, I have trans-
ferred it bodily, with such changes
and additions as seemed best, act-
ing in this instance in conformity
with the words with which he
closes his preface: “Wherever I have
found truths well stated by others, I
have preferred useful compilation
to worthless novelty.” See Creasy,
chs, VII, VIII.
§ 16.] INTRODUCTION. 21
indispensable. Even the state of the enslaved peasantry of Eng-
land at the commencement of the thirteenth century cannot be
thoroughly discerned unless we view the peasants in relation
to their feudal lords. And when we proceed to the great events
of the century, it would be utterly impossible to give any in-
telligible account of the greatest of all,the acquisition of Magna
Carta, without continually pausing to explain feudal terms and
usages, if we should not have taken a preliminary survey of
that strange body of social and political institutions, so long
and so generally prevalent over Europe, to which historians
and jurists have given the title of Feudal. The inquiry is in-
deed far from being one of mere antiquarian interest. The
forms of our constitution cannot be understood without it; and
the student of our law, especially of the law of real property,
must still resort to the feudal system for the principles, and
even for the practice, of his art. We will not, however, discuss
here either the etymology, or the date of the birth, or the exact
pedigree of feuds. Suffice it for the present occasion to say
generally that the feudal system was gradually matured dur-
ing the six or seven centuries of confusion which followed the
eruption of the Germanic nations into the Western Roman
Bmpire, and that at the epoch which we treat as the dawn of
complete English history (about A. D. 1215), the feudal system
was established, though with different modifications, in every
European country that had been a Roman province and had
been overrun by German conquerors. The feudal system was
also then established in Germany itself.
SEC. 16. Meaning of Feudal Tenure.”—“There are many
things which are the more easily understood by first obtaining an
understanding of their opposites. This is the case with the word
“feudal.” The term used in contradistinction to it, by Euro-
pean jurists, is “allodial.” Allodial land was land in which a
man had the full and entire property, which he held (as the
saying is) out and out. But feudal land (and the land itself so
held was called a feud or fief) was land which a man held of
1 It is not intended here to explain in America, says Chief Justice Jay,
feudal tenure, but merely to refer to was held mediately or immediately
is as explanatory of the political insti- by grants from the crown. Chisholm
tution known as the feudal system, v. Georgia, 2 Dall., at p. 470. See 2
of which the mode of holding land Wilson, Works, 496.
was an incident. Every acre of land -
22 INTRODUCTION, - [$ 16.
some other man, from whom or whose ancestors the holder (or
his ancestors) had received permission to possess and enjoy the
fruits of the land; but the property and ultimate dominion of it
remained in the giver, or, as he was technically called, the lord.
The idea of the sovereign owner of the land allowing individuals
to have the possession of portions of it, and even to transmit
such possessory interest to their heirs, on condition of rendering
certain services, usually military, may be found in the institu-
tion of almost every ancient European nation, and in those of
many Asiatic states at the present time. But it was only in
mediaeval Europe that this simple idea and natural custom
were elaborated into a complete system of government and of
social organization, to which everything else was made subor-
dinate, and by reference to which every public office and every
private right were determined.
“In order the more clearly to picture to ourselves the chief
causes of the establishment of feudalism, we may sketch in our
minds the progress and watch the position of some one of those
numerous bands of Teutonic conquerors that had won their
way into a Roman province at the fall of the ancient Western
empire. The sketch there presented is applicable to Roman-
ized Europe generally, not especially to England.
“My object at present is to give the leading ideas of feudal-
ism. When by degrees the band of Germanic warriors who
had broken in upon Gaul and other Roman provinces began
to lose their spirit of fierce restlessness, and to wish for some
permanent settlement in the territories which they had con-
quered from the provincials and had long fought for with each
other, the ownership of land acquired a value in their eyes,
not merely of a higher degree, but of a wholly different nature,
to that which it had in the eyes of their ancestors, who dwelt
amid their primitive forests and Wildernesses; and also to that
which it had had in their own, so long as they were a mere
troop of adventurers, roving in quest of plunder, or seeking.
fresh enterprises for the sheer sake of excitement. Let us im-
agine an army of Germanic conquerors in this mood for becom-
ing inhabitants of the land which they had conquered, and let
us remark what would be the natural result. Some part of the
territory might probably be left in the hands of the conquered
population, but the conquerors would share the rest. The
§ 16.] - INTRODUCTION. 23
points to attend to are to see first how they would share it, and,
secondly, what other system of parceling out domains would
soon ensue. It is to be remembered that each barbaric king
was not the sovereign of an army of subjects in the sense in
which we employ the term ‘sovereign' and ‘subject,” but of
free and independent warriors, each of whom would claim his
share of the spoil as a right; as something to hold at his own
free will, not as a boon revocable at a despot's caprice. The
portion of land which the German soldier thus took, he took
as his property, and his estate in it was termed, by the Franks,
allodial. As the conquerors dwelt among a numerically su-
perior population, their safety must have required them to keep
up their military organization, and the subordination which is
the essence of all military discipline must have greatly facili-
tated the change of tenure, which, as we shall next see, gen-
erally occurred. - -
“I have described the distribution of land that took place
among the free warriors who composed a Germanic army, and
the terms on which that land was usually assigned; but all the
confiscated territories was not thus portioned out. Large de-
mesnes were reserved for the king, called fiscal lands. Out of
these royal demesnes the sovereigns granted lands to their
most favored or distinguished personal followers, under the title
of fiefs or benefices. Whether any definite service were at first
affixed to a beneficiary grant is uncertain, but in the nature of
things some return would be expected from the favored fol-
lower—an expectation which would soon ripen into a demand;
and military services against foreign, or domestic foes would,
in such a state of society, be the return most desirable to the
grantor, and most easily and willingly accorded by the receiver.
But the ownership of the fief did not pass out of the grantor.
The favored individual (the feudatory, in the technical phrase)
received not a right of property,’ but a mere license of posses-
sion and enjoyment, an usufructuary right, which some authors
suppose to have been at first precarious and arbitrarily revo-
cable, though the feudatory’s interest soon became more certain
and permanent, enduring for his life unless forfeited by some
act of misconduct towards the giver, or, as we will term him,
assuming the feudal phraseology, the lord; and gradually fiefs
1 Note this word “property.”
24. INTRODUCTION. [$ 17.
became hereditary, though throughout the development of the
system the ultimate property was and is held to be in the lord,
as evidenced both by legal forms and symbols, and by the lia-
bilities of the fief to revert to the hand that gave it—liabili-
ties which long afforded sharp and practical symptoms of its
original character. As the privileges of the feudatory thus
became certain, so were his duties systematized, and the conse-
quence of his breach of them defined. Military service, fidelity
in counsel, respect for the person and honor of his lord, attend-
ance at his lord’s tribunal, pecuniary contribution in certain
cases, formed the essence of these duties, varying, however, in
detail at different times and in different countries. Correspond-
ing duties of protection from the lord to the feudatory existed,
and the general character of the relation between the lord and
vassal may be defined, in Mr. Hallam's words, as a mutual con-
tract of support and fidelity.
SEC. 17. Subinfeudation.—“We have been describing a case of
feudalism in its simplest form, where the feudatory, to whom
the sovereign lord of the land granted it, continued to hold the
land himself. But the process of ‘subinfeudation” was com-
mon, and then a far more complex state of things arose. The
feudatory, who received large grants of land from his sovereign,
frequently had dependents of his own to whom he carved out
portions of his fief, to be held of himself on terms similar to
those by which he held it of his lord. His sub-grantees thus
became vassals under him, and he was a feudal lord to them.
They again might divide their sub-fief and grant them to oth-
ers. And the process might be indefinitely renewed as often
as each subdivided piece of feudal land was capable of still
further subdivision, so that many links in the feudal chain
might intervene between the original grantor, or lord para-
mount, and the actual occupant of the soil, who was termed
the tenant paravail. Thus, there arose a seignioral hierarchy,
specious in appearance, and which Blackstone has eulogized,
but in reality productive of very great confusion. For, as it
was in respect of the land that the feudal relation arose, and
not in respect of any personal status of the individual, the same
two men might be, and often were, lords and vassals of each
other in respect of different lands, and an endless conflict of
obligations and rights was created. Still some protection was
§ 17.] INTRODUCTION. 25
gained from the system; and as times grew more and more
troubled after the dissolution of the empire of Charlemagne,
the oppressed and isolated allodialist was glad to seek even
temporary shelter, by becoming One of the liegemen of some
powerful baron in his neighborhood. Frequently, also, the
feudal barons possessed themselves with strong hand of the
little properties of their feebler neighbors. “During the tenth
and eleventh centuries,’ says Mr. IIallam, ‘it appears that
allodial lands in France had chiefly become feudal; that is,
they had been surrendered by their proprietors, and received
back again upon the feudal conditions, Or, more frequently
perhaps, the owner had been compelled to acknowledge him-
Self the man or vassal of the suzerain, and thus to confess an
Original grant which had never existed. Changes of the same
nature, though not perhaps so extensive or so distinctly to be
traced, took place in Italy and Germany; yet it would be
inaccurate to assert that the prevalence of the feudal system
has been unlimited. In a great part of France allodial tenures
always subsisted, and many estates in the empire were of the
same description.”
“The influence of the feudal system was not limited to the lay
part of the population or to the rural districts of the state.
“The prelates and abbots were completely “feudal nobles; ”
they swore fealty for their lands to the king or other superiors;
received the homage of their vassals; enjoyed the same im-
munities, exercised the same jurisdiction, maintained the same
authority, as the lay lords among whom they dwelt.’ Very
frequently the bishops and abbots gave fiefs to knights on con-
dition of defending the cathedral or the abbey, and of supplying
and leading the contingent of troops which the lord paramount
demanded. The towns and cities also had their feudal lords.
Sometimes the rights of war and conquest gave to the sovereign
or some powerful noble the feudal seigniory over a civic com-
munity. Sometimes burghers voluntarily placed their city
under the feudal seigniory of some celebrated chieftain or
neighboring baron for the sake of military protection. The
extent of the jurisdiction of the feudal lord over a borough
varied according to the terms of the original compact, where it
had been voluntarily created, and according to the terms which
the burgesses were able to purchase where the lord’s right over
26 . INTRODUCTION. - [šš 18–20.
them was the sweeping right of conquest. The modes by which
the boroughs obtained their charters of liberties, their munici-
pal Organization and their own leagues with one another for
self-protection form one of the most interesting portions of
mediaeval history, but can only be glanced at here.
SEC. 18. “The Spirit of the Feudal System was essentially aris-
tocratic. It required, indeed, the existence of a single lord para-
mount, whether termed emperor or king, who was theoretically
the Supreme fountain of honor and justice, and the motive center
of authority, both in peace and war. But in practice the feudal
aristocracy was an aggressive power that ever sought to ag-
grandize itself at the expense of monarchy. The procèss of
subinfeudation was the great cause of this. Each baron who
girt himself with martial vassals sworn to serve him, and who
made the revenues of provinces and cities his own, became the
founder of an “imperium in imperio.” He did not, indeed,
often throw off the semblance of allegiance to his sovereign,
but he claimed and exercised the right of resisting his sovereign
by open force if the sovereign carried his feudal prerogative
too far, and of making formal war on him as on a stranger, if
his sovereign did him wrong on any matter unconnected with
their feudal relationship. He claimed and freely exercised the
7°ight of making war on any of his fellow-subjects, on the neigh-
boring barons, or others who offended him. This right of pri-
vate warfare was the greatest affliction to feudal Europe.
SEC. 19. The Right of Jurisdiction.—“Another point on which
the feudal lords strove to assert their independence of the crown
was the right of administering justice in their own territories.
IEach feudal lord had his baronial court, at which his military
tenants attended, and where the judicial combat was the favor-
ite mode of determining controversies between the litigants,
whether of a civil or a criminal nature.
SEC. 20. Natural Conflict Between Sovereign and Feudal
JBaron.—“While the feudal aristocracy was thus encroaching
upon the natural powers of the monarchy, it was no less aggres-
sive upon the commonalty of the land. The feudal barons and
their retainers gradually formed an aristocracy of birth as well
as of tenure. - -
“In applying to English history the description of the prin-
ciples of feudalism given above, we must remember several im-
§§ 21, 22.]
INTRODUCTION.
27
{
portant points of distinction between that island and the conti-
ment respecting the adoption and the development of the feudal
system. But the distinction between feudalism in England and
feudalism in France, Germany, Italy or Spain is even more due
to the sagacious mind and resolute will of one great man — of
William the Conqueror himself. Before we examine this, there
are two topics which must be considered. These are: first, the
question how far feudalism existed among the Saxons in Eng-
land before the Conquest, and secondly, how far did it exist
among the Normans in Normandy before the Conquest?
SEC. 21. Saa.on Feudalism.”—“On the first of these questions
many volumes have been written, and many more will probably
appear. I am not going to discuss the conflicting theories that
have been put forward, and will only observe that, so far as
the forms of feudalism are concerned, there are few, if any,
of which we cannot trace occasional precedents or analogies
among the Anglo-Saxons, but that no general elaborate sys-
tem of feudal forms and ceremonies existed in Saxon England
like that which we find here afterwards. So far as regards the
spirit of feudalism, there was certainly little here before the
Conquest. The Saxon ceorl and his thane were in a far dif-
ferent position relatively to each other from that in which the
Anglo-Norman villein stood relatively to his lord. On the
whole, I would affirm that there were many institutions among
the Anglo-Saxons of a partially feudal nature, which much
facilitated the subsequent introduction of feudalism; but that
the feudal system, as a system, cannot be said to have existed
here before the overthrow of Saxon independence at Hastings.
SEC. 22. Norman Feudalism.—“A perusal of Dudon de St.
Quentin, of William of Jumiege, and Wace, abundantly proves.
that feudalism, in all its essential principles, either had been es-
1Sullivan asserts this jurisdiction
to exist among the Saxons. “It is a
very curious fact that even Some of
the Anglo-Saxon nobles had all the
prerogatives of earls-palatine. Al-
fred, we are told, put to death one of
his judges for having passed sentence
On a malefactor for an offense which
had been committed where the king’s
writ did not pass. Mirroire de Jus-
tices, ch. V. And in Selden we meet.
with earls who had entirely the civil
and criminal jurisdiction in their
own territories. Tit. Hon., part 2,
ch. V. If there were no other proofs
than these, they would have been suf-
ficient to evince the reality of fiefs
among the Anglo-Saxons.” Sullivan's
Lect., Int., p. xviii. -
2S INTRODUCTION. [$ 23.
tablished or had grown up in Normandy before William the Bas-
tard became duke; and one great point, namely, that the Norman
peasantry were tyrannized over as villein, in the fullest inten-
sity of feudalism, is shown by the narrative of the insurrection
of those unhappy men against Duke Richard the Second, which
I have quoted in a preceding chapter. The clear evidence also,
which we possess, of how William dealt with land holders in
England, is cogent proof that he was familiar with the feudal
tenures in his own duchy. I believe, on the whole, that it is
substantially correct to say that William introduced the feudal
system in this country, though some portions of it were not
fully developed till after his time, and though Henry the Second
and his justiciars, when they reorganized the kingdom, after
the ‘shipwreck’ which it underwent in Stephen's time, prob-
ably made several innovations. He established as a universal
rule throughout the country that he himself was the Supreme
lord of all the land. Such continues to be the theory of our
law to the present hour. “All the lands and tenements in Eng-
land in the hands of subjects,” says Coke, ‘are holden mediately
or immediately of the king; for in the law of England we have
not properly allodium.”
“The feudal supremacy of the crown was solemnly acknowl-
edged at the great assembly which William convened at Salis-
bury in 1086. Every man of the least note who held land in
England attended there, and they all took the oath of fealty to
William as their liege lord, and each of the vast multitude per-
formed the ceremony of homage to him. Each land-owner,
whatever his rank or wealth, knelt openly and humbly before
William as he sat on his throne. Each placed his clasped hands
within the king’s hands and pronounced the formal words: ‘I
become your man from this day forth, of life, of limb and of
earthly worship, and unto you will be true and faithful, and
bear you faith for the land I hold of you; so help me God.”
SEC. 23. New Form of Allegiance Introduced by William.—
“But while William thus made feudalism universal in England,
he at the same time made an important alteration in its system,
by which he strengthened the authority of the crown, and pro-
1 There was another and more elab- in 1 Sullivan's Lectures, 83. See also
Orate Oath of allegiance, the text of McGrimke's arg. in Allegiance Cases,
which isgiven in full, with comments, 2 Hill (S. C.), *39.
§§ 24–26.] INTRODUCTION. 29
vided against his great vassals acquiring the insubordinate
powers which the feudal nobility on the continent enjoyed.
He did not indeed prohibit subinfeudation. That was not done
till two centuries later. But William at the Salisbury conven-
tion made all the sub-tenants of his tenants in capiti (i. e., of
those who held land immediately from himself) take the oath of
fealty to him the king as the lord paramount of all; whereas,
On the continent, the vassal who held lands took oath of fealty
to his own immediate lord—to the sovereign if he held directly
from him, but to the mesne lord if (as in the great majority of
cases) some peer or baron, or perchance several of them, inter-
vened between the crown and the occupant of the soil.
SEC. 24. Other Restrictions on the Aristocracy.—“Besides this
“breaking in upon feudal compact in its most essential attri-
butes the exclusive dependence of a vassal upon his immediate
lord,” William took other effective measures to keep down the
influence of the aristocracy and exalt that of the crown. While
lavishly generous in his grants of land to those who had served
him, he took care to reward each leading Norman noble by es-
tates scattered over different parts of the kingdom, and not
by compact little principalities which might serve as bases of
rebellion, and form independent states.
SEC. 25. Restrictions on Jurisdiction — The Courts Baron.—
“He maintained also, in effective force, the supreme authority of
his own royal tribunal, and kept within as narrow limits as
possible the territorial jurisdiction which each lord of a manor
exercised in his court baron.
SEC. 26. Local Courts.-‘‘He had the wisdom, also, to retain,
the Saxon popular tribunal of the county court and the court of
the hundred, although he diminished the dignity of the county
court by withdrawing ecclesiastical matters from its cognizance.
For all purposes of temporal jurisdiction it was preserved. It
may, indeed, be said to have acquired vigor, and to have become
more democratic in character, under the Anglo-Norman kings
than it had before the Conquest. Under the Anglo-Saxon sys-
tem. Only the thanes—that is, the gentry—could act and vote as
members of the county court. Under the Anglo-Norman rule,
all persons who held any land by a free tenure had a right to
attend the county court and to take part, both as suitors and
Voters, in its proceedings. While these democratic courts of
30
INTRODUCTION. [$ 27.
!
the shire and the hundred flourished, and while also the power
of the king’s courts was gradually extended (as was done by
the Conqueror's wisest successors), it was impossible for any
feudal lord in England to raise his baronial court into the ju-
dicial importance which was arrogated by each count and
seignior on the continent.” -
Wew Theory of Jurisdiction.—Norman feudalism, and the
notion of sovereignty necessarily incident thereto, introduced
the theory of jurisdiction altogether unknown under the Saxon
laws. The jurisdiction of the Saxon tribunals was original, and
by law not derivative by delegation of the king, for the Saxon
king did not have civil jurisdiction as king;' but when the
Norman earl assumed the exercise of all jurisdiction, all courts
necessarily acted by delegation, and no court in a civil case
ever acted without the warrant of the king's writs.”
Of a court of equity, Or of equity in modern sense, there was
at this time no thought.” -
IFourth Period.
SEC. 27. Revival of the Science of Law —Rise of the Science
of Government — Influence of Roman Occupation of Britain.—
The temptation to digress from the theme adopted, and to in-
dulge in the study of the progress of civilization and the growth
of civil and religious liberty, must be resisted, and the limits of
the subject severely regarded."
This observation sufficiently ac-
1 Maine's Anglo-Saxon Law, 24;
"White's Outlines, 24. -
21 Spence's Eq. Jur. 62; Chisholm
v. Georgia, 2 Dall. *458; Andrews’
Stephen's Pl., § 38; 1 Pollock & Mait-
land, Hist. 175.
3 “Of equity as of a set of rules
which can be put beside the rules of
law, or of courts whose proper func-
tion is the administration, not of
law, but of equity, we shall hear
nothing for a long time to come,”
say Pollock and Maitland, writing
of the age of Bracton in their his-
tory of English law before the time
of Edward the First (vol. 1, 168). But
that a contrast between aequitas
and rigor juris was then recognized,
and the king's court by tradition
empowered to do whatever equity
might be required, was asserted by
the Frankish kings, and since the
Conquest, say these historians. So
of equitable jurisdiction exercised in
the chancery nothing was heard, the
king’s justices still believing that
they could do what equity requires.
(176.)
4 The intimate relations of these
Subjects to the development of juris-
prudence is apparent on slight re-
flection. The progress which a peo-
ple has made toward civilization may
be quite closely measured by con-
sidering the state of the laws which
regulate the government established
among them. The four hypotheses
of Guizot, as tests, indicate quite
clearly his view of civilization.
The first — A people among whom
§ 27.]
INTRODUCTION. 31
counts for passing by the Saxon period of English law and here
taking but slight notice of Saxon institutions.
To properly understand English law, the Roman occupation
of Britain as well as Saxon institutions must be taken into ac-
count. As early as Caracalla’s reign the free Britons were
Roman citizens, and for nearly five centuries, including the
most brilliant period of the development of Roman law, the
days of Cicero, Hadrian, the Antonies, Gaius, Ulpian, Papinian,
and till after the Theodosian Code, the laws of Rome held
sway in ancient England. The illustrious Papinian was prefect
at York under the Emperor Severus,” who it is claimed visited
that place himself, and it is claimed that Paulus and Ulpian
were also in Briton.
It is important to note that the customs of the people of a
province were recognized as law at Rome, and that King Canute
visited Rome very shortly after the withdrawal of the Romans,
and from that time the constant cry of the English people was
for their ancient customs: it may throw some light upon the
Origin of the idea of the binding force of custom.”
The Roman Wall has been almost obliterated by the ravages
of time, but no enlightened jurist any longer doubts the influ-
ence of ancient Roman law and civilization upon the institu-
tions of Saxon England and the permanency of their effect.*
There was mingling of blood, of religion, of law.
In the same way and to a greater degree have Saxon institu-
tions influenced English law. The Saxon period, with the leaven
private justice well administered,
but the people at large have no share
in the government.
The second — There is the same de-
gree of Comfort, considerable men-
tal and moral activity, but liberty
stifled. The condition of Asia.
The third—Great show of liberty,
but great actual inequality. The
strong opposes the weak,
The fourth — Great individual
equality and liberty, few general in-
terests, so that society gets little
from the individual. It is apparent
that to Guizot the manner in which
the reciprocal rights and duties of
Society and individuals were bal-
anced plays an important part in
the scheme of civilization. Hist. of
Civ., p. 8.
1 Reeves’ Hist. Eng. Law, Int., XXI.
21 Kent, Com, *545.
81 Reeves’ Hist. Eng. Law (Finla-
Son ed.), p. 225, note; 1 Spence's Eq.
Jur. 1. The real point of controversy
upon the subject of the influence of
the civil law upon English law re-
lates to whether the influence was
exerted directly by reason of the
Roman occupation, or indirectly by
the influence of the later study of
the civil law.
41 Kent, Com. *546; Reeves’ Hist.
Eng. Law, Int., and vol. 1, p. 225.
32 INTRODUCTION. [$$ 28, 29,
of the old Roman law working in it, and the light of Christian-
ity and literature breaking upon it, of which much will be seen
when American law is fairly entered up, may be passed by.
SEC. 28. Feudal Bngland — The JEnglish System Out of
which Our American Ancestors Emerged.—We may ask, what
progress has government and law made since we left it in
Grecian Athens or Roman Greece? The question is answered
by asking: What are the people, the great body of the yeomanry,
which in later centuries became the commons? They are slaves,
though called serfs and villeins. The Saxons were more hon-
est; they called slaves, slaves." That state of the political at-
mosphere had not been reached that “the air of England is
too pure for a slave to breathe,” which expression Lord Mans-
field used of the slave of an American colonist.
SEC. 29. Early Limitations on Absolute Sovereignty–Magna
Charta.- A few observations upon the Great Charter will bring
out the relation of the people to those in whose hands were the
government. Of this charter Hoffman says: “Whatever ob-
structions the royal power found to its tyrannical exercise were
opposed by its turbulent aristocracy. For this (the aristocracy)
all the privileges, all the charters, all the limitations of preroga-
tive were created; and during all these struggles the people,
properly so called, were effectually out of view, because they
formed no part of the political state. Even when provision
was made against the tyrannical oppression of the king, the
very phrase shows the contemptibleness of the commons.
‘AWul/us liber homo,” says Magna Charta — a phrase so far from
applying to the commons of England, or exhibiting any care
for their rights, that it in fact concerned that class only which
stood in contradistinction to the commonalty; liber homo mean-
ing anything but those indigent and inconsiderable individuals
from whom the English commons were afterwards to arise. It
is true, indeed, that every subject of England at this day appro-
priates to himself the benign enactments of the charters and
limitations of prerogative alluded to, and that Magna Charta is
now a panoply to all; but we must look for the Origin of this
in times and causes much nearer our own day.”
1 Reeves’ Hist. Eng. Law, pp. 172, opinion compare the cases of Smith
174. v. Brown, Salk. 666; Buttz v. Penny,
2 Somerset's Case, 1772; S. C., Great 2 Lev. 210; Pearce v. Lisle, Amb. 76.
Opinions by Great Judges. With this 3 Hoffman’s Legal Outlines, p. 585.
§ 29.]
INTRODUCTION. 33.
This opinion, while not defensible to its full extent, contains
a very salutary admonition, for the reason that a student is
often misled to believe that by Magna Charta at a single
stroke the people of England emerged from darkness into light,
which is untrue, as at the time there were no commons.”
The
people less in rank than the barons had only such representa-
tion as allegiance to their lords gave them. It was a great
limitation upon the powers of the crown, and did profess to
secure, for every individual, protection of life and liberty, un-
less forfeited by due process of law, and, though obtained by
the barons, expressly named the freemen and villeins.
From
that day the law of the land became a birth-right (the charter
really restored the people to ancient rights), and in that sense
Magna Charta was, and is, properly called the bulwark of Eng-
lish liberty. But what of the law itself, and what of the people?
The government was based upon the feudal system, with its
idea of fealty; that is, the allegiance of one person to the per-
Son of another, or, stated simply, One man became the man of
another.
Its fiefs, subinfeudations, aids, escheats, wardships,
marriage dues, cumbersome feudal tenures, obliterated almost
entirely socage tenures.” There was scarce a notion of the law
merchant or equity. The people were the king’s liegemen.
Farls, barons, freemen and villeins were all the king's, the
lords bound to the king, the so-called vassals liegemen to the
lords,” and the villeins beneath the heel of all.
It is not until
after the establishment of the representation of the people
through their especial representatives in a House of Commons
that the people are confirmed in their ancient liberties, both in
1The Magna Charta brought back in
Some measure the golden time of the
Confessor. It appeared to the barons
that they could not expect the assist-
ance of the people if, in treating with
John, they should only act for their
- own emolument. They were there-
fore careful that stipulation should
be made in favor of general liberty.
The people were considered as par-
ties to transactions which most inti-
mately concerned them. The feudal
rigors were abated, and the privileges
claimed by the more dignified pos-
SeSSOrs of fiefs were communicated
to inferior vassals. The cities and
boroughs received a confirmation of
their ancient immunities and cus-
toms. Provisions were made for a
proper execution of justice, and in
the restraints affixed to the power of
the king and the nobility the people.
found protection and security. 1 Sul-
livan's Lectures, XX.
2 Hale's Hist. Com. Taw (Running-
ton ed.), p. 181, note.
3 Reeves’ Hist. Eng. Law, p. 225,
Inote.
4 Reeves’ Hist. Eng. Law, vol. 1,
p. 469, note.
34 INTRODUCTION. [$$ 30, 31.
person and property, by written limitation upon the prerogatives
of the king.
SEC. 30. Confirmatio Cartarum.—This took place by the act
of the twenty-fifth year of Edward the First, and commonly
called “Confirmatio cartarum,” being the year 1297. This stat-
ute gave the same security to private property which had been
given by Magna Charta to personal security; for while Norman
kings had always renounced any right to raise a revenue by
taxation, the matter did not become a constitutional limitation
upon the king until after the Confirmatio cartarum, which ex-
pressly put that right in the hands of the Commons, or at least
in the hands of Parliament."
The Commons, it must be recollected, are the only representa-
tive body in the English constitution,” the King being the Su-
preme executive, the Lords representing no one — simply acting
for themselves, and the Commons, who were formerly knights
of the shire and representatives of the boroughs, represented the
people of their vicinity or territory.” .
SEC. 31. Rise of the House of Commons.—The establishment
of the representative principle by the admission of this represen-
tative body into the great council of the nation is not to be taken
as the consummation of liberty; much less is it the attainment
of the true principle upon which the science of politics is Sup-
posed to rest, viz.: Equality before the law. It is but a step
1 The first parliament in which
people had representatives was in
1265. 2 Reeves’ Hist. Eng. L. (Fin-
lason, ed.) 350, note. There is said to
be earlier traces of the Commons, but
the form is quite obscure. Freeman's
William the Conqueror, p. 157; Argu-
ment of Cliffin in Burdett v. Abbott,
4 Taunt. 403; 1 Coke, I, 62, note. The
forty-ninth year of Henry III, and
the twenty-third year of Edward I,
which so many writers consider as
the dates of the establishment of
the Commons, were of consequence
nothing more than memorable
epochs in their history. The first
summons of knights on record is
supposed to be in the twenty-ninth
year of Henry III. But this, though
it were true, does not prove that
knights were not known until that
time. The writ does not say so;
nor can it be gathered from it that
knights of the shire were then newly
established. If there remained, in-
deed, an uniform series of records
from the earliest times in which
there was no mention of knights till
the age of Henry III, there might
thence arise a strong argument
against their antiquity. But this is
not the case; and it happens that in
the fifteenth year of King John
there is a writ to the sheriff to sum-
mon FOUR knights of the county.
1 Sullivan’s Lectures, XXII.
21 Wilson's Works, 389.
*See Webster's arg. in Luther v.
Borden, 7 How. 1.
§ 32.] INTRODUCTION.
35
of ground gained in the struggle; the liberation of a force
which had before been guided by one or other of the con-
tending powers; the creation of a new estate which was des-
timed ere long to curb the power of both. No more than the es-
tablishment of Protestantism established religious freedom did
the Commons establish civil or political liberty, the rational
principle of which was then unknown, or at least disregarded.”
SEC. 32. Influence of the Study of the Civil Law.—It is the nat-
ural course of development of all sciences that later systems, in
any considerable degree dependent upon or modeled after any
preceding system, shall proceed upon the same or similar lines.
Jurisprudence forms no exception, and the common law of
England is subject to the same principle. The common law is
no new invention evolved by Englishmen out of the fertility
of their own invention. There is very little in it which is pe-
culiar to England. Lord Bacon, in his offer to make a digest *
of the laws of England, says: “Now, for the laws of England,
if I shall speak my opinion of them without partiality either
to my profession or country, for the matter and nature of them,
wise, just and moderate laws. They give to God; they give
to Caesar; they give to the subject what appertaineth. It is
true they are as mixed as Our language, composed of British,
1 See Stubbs' Hist. Eng., ch. XIV. Richard II, no servant or laborer
“The Confirmatio Cartarum did not
need the executory provisions of the
charter of John. It rested not only
on the word of a king, who might be
trusted to keep his oath, but on a
full resolve of a nation awake to its
own determination. The king has
taught in the plainest terms the
principle by which the nation binds
him — ‘that which touches all shall
be allowed of all;" the law that
binds all, the tax that is paid by all,
the policy that affects the interests
of all, shall be authorized by the con-
sent of all. From the date of that
great pacification, party politics take
new forms.” 2 Stubbs' Con. Hist. of
England, p. 5. . .
3 As an example of their idea of
liberty note the following: “By a
Very hard statute in the 12th of
could depart, even at the expiration
of his services, from the hundred in
which he lived, without permission,
under the king's seal. Nor might
any who had been bred to husbandry
till twelve years old exercise any
other calling. A few years after-
wards the Commons petitioned “that
villeins might not put their children
to school in order to advance them
by the church, and this for the honor
of all the freemen of the church.”
These petitions against emancipation
and progress are followed by others
equally drastic in their terms and
scope. Hallam, Middle Ages, ch. VIII,
part III. -
3 The term “digest" is here used,
not as an index, but as an Orderly
treatment. e
3
36 INTRODUCTION, [$ 32.
Roman, Saxon, Danish, Norman customs; and surely as our
language is thereby so much the richer, so our laws are like-
wise by that mixture the more complete. Neither does this
attribute less to them than those that would have them to have
stood out the same in all mutations. For no tree is so good
first set, as by transplanting and grafting.”"
Bracton.— The influence of jurisprudence, properly so called,
begins with Bracton, who wrote during the reign of Henry III.
Bracton simply copied a large portion of his work from the
Roman law. The arrangement of the book is taken from the
Institutes, and it is not until that portion of the work which
deals with legal actions and estates in land is reached that the
book is based on the English law. It does not treat of public
law. º
During the reign of Edward the First great impetus was given
to the science of law. So marked is the progress made under
this distinguished monarch that he is called the English Jus-
tinian. The influences which combined to qualify Edward for
this work, and the sources from which he drew his inspiration,
are thus stated by Stubbs: “Edward was by instinct a law
giver, and he lived in a legal age; the age that had seen Fred-
erick II legislating for Sicily; Louis IX for France, and Alfonso
the Wise for Castille; the age that witnessed the greatest in-
road of written law upon custom and tradition that had
occurred since the date of the Capitularies; that saw the growth
of great legal schools in the universities, and found in the re-
vived Roman jurisprudence a treasury of principles, rules and
definitions applicable to systems of law which had grown up in-
dependently of the Imperial codes. Bracton had read English
jurisprudence by the light of the Code and the Digest, and the
results of his labor were adapted to practical use by Fleta and
Pritton. Edward had by his side Francesco Accursi, the son of
the great Accursi of Bologna, the writer of the Glossus on the
Civil Law, a professional legist and diplomatist; but he found
probably in his chancellor, Burnell, and in judges like Heng-
ham and Britton, practical advisers, to whose propositions, based
on their knowledge of national custom and experience of na-
tional wants, the scientific civilian could add only technical
consistency.”” -
l Bacon's Works, vol. I, p. 335. 2 Stubbs' Con. Hist., vol. II, p. 110.
§ 33.] INTRoduction. 37
SEC. 33. Misleading Views of Blackstone.—The students of our
law who are directed to read the first book of Blackstone’s Com-
mentaries' as an introduction to the study of law, as probably
the majority of students still are allowed to do, encounters
false notions of the principles of law and erroneous concep-
tions of the sources of the common law, which are almost
sure to confuse the ordinary youth, who has, by merely living
in the atmosphere of our legal institutions, imbibed views of
our legal system entirely at war with these notions of the
learned commentator. Fortunately, one attempting to present
a treatise upon American law has at the present time abundant
authority to justify a radical departure from the habitual blind
following of Blackstone. There is no place in jurisprudence
where disciples of Blackstone can apply his doctrines on the
theory of law and government. His fundamental political dog-
mas had very transient influence in England, although his treat-
ment of the subject generally classed as private law is a model of
method and perspicuity. That he completely throws off the track
the student endeavoring to discover the sources of English and
American jurisprudence is nowhere better stated than in Pol-
lock and Maitland's History of the Common Law. As a distin-
guished jurist of the United States has adopted the views
referred to, it will serve a double purpose to quote his observa-
tions in that connection.
Professor Howe, in his Studies on the Civil Law, speaking of
Blackstone's views of the civil law, says: “And therefore, as
against the utterances of Blackstone as quoted above, we may
set the following from the work of Pollock and Maitland
already alluded to. Referring to the time of Henry II and to
Mr. Blackstone's singular theories in regard to its spirit, and
pointing out the fact that the twelfth century was one remark-
able for its devotion to jurisprudence, they say: ‘The keenest
minds of the age had set to work on the classical Roman texts,
and they were inspired by a genuine love of knowledge.
The Roman law was for them living law. Its claim to live
and to rule was intimately connected with the continuity of
the empire. . . . But such theories, apart from the Roman
law, demanded reverence, if not obedience, as the due of its
Own intrinsic merits. It was divinely reasonable; it was a law
1 These observations are confined strictly to the first book,
3S INTRODUCTION. [$ 33.
that rejoiced the heart, and gave wisdom unto the simple. . . .
IHenry’s greatest, his most lasting, triumph in the legal field
was this: that he made the prelates of the church his justices.
English law was thus administered by the ablest, the best, the
best-educated men in the realm; . . . men who were bound
to be, in Some measure at least, learned in the canon law. At
One moment Henry has three bishops for his archjusticiars.
The climax is reached in Richard's reign. We can there see
the king’s court as it sits day by day. Often enough it was
composed of the Archbishop of Canterbury, two other bishops,
two or three archdeacons, two or three ordained clerks who
were going to be bishops, and but two or three laymen. The
majority of its members might at any time be called upon to
hear ecclesiastical causes and learn the lessons in law that were
addressed to them in papal rescripts. Blackstone's picture of a
nation divided into two parties — the bishops and clergy on the
One side contending for their foreign jurisprudence; the nobil-
ity and the laity on the other side adhering with equal per-
tinacity to the old common law — is not a true one. It is by
“popish clergymen. ” that our English common law is converted
from a rude mass of customs into an articulate system, and
when the “popish clergymen,” yielding at length to the pope's
commands, no longer sit as the principal justices of the king's
court, the golden age of the common law is over.' . . . If,
as we understand, the custom of the king’s court was the custom
of England, and became the common law, and if the king's
court was thus composed, during these golden and formative
days, of men whose chief culture was romano-canonical, the
syllogism seems complete and the conclusion inevitable. An-
other source of influence may be briefly noticed. It was about
the middle of the twelfth century that Vacarius, imported from
Italy by Theobald of Canterbury, began to teach the Roman
law at Oxford, and that university soon had a flourishing school
of both the civil and the canon law. In the thirteenth century
Francisco d’Accorso was invited from Bologna to Oxford by
Edward II,' ‘the English Justinian,” to lecture on Roman law.
In the fourteenth century Bishop Bateman of Norwich founded
Trinity Hall, Cambridge, for the study of the civil and the
"This is an error (typographical invited by Edward the First. Ed-
doubtless). Accorso, or Accursi, as it ward I is the English Justinian.
is given by Stubbs (ante, p. 36), was . . . . . -- -
§ 34.]
INTRODUCTION. 39
canon law. The enthusiasm of young Englishmen of the time
of Edward for such studies was intense, and many went to
Dologna and Paris for the purpose, where the use of Latin, as
the universal language of scholars, made such studies most
charming and fruitful. To this should be added the publica-
tions of text-books of that period. In the time of Henry II
came the treatise of Glanville, of which Professor Maitland has
recently said, ‘in a sense the whole book is Roman.” In the
middle of the thirteenth century came Bracton, an ecclesiastic,
an archdeacon, a student of the Roman law, as taught by AZO.
Sir Henry Maine says that ‘the entire form and one-third of
the contents’ of Braeton's treatise were taken from the Corpus
Juris.” 1 e
SEC. 34. Method of English Institutional Writers.-The posi-
tion may now be taken as established that the development of
English jurisprudence, so far as it took tangible form in the
arrangement of treatises by the earlier writers, proceeded upon
the lines of the civil law, and was influenced by the study of
that system.” - v.
Inasmuch as the method of English legal authors is to be ex-
amined quite critically in the next chapter, it will be sufficient
here to notice merely the development of ideas in relation to
legal methods.
Sir Henry Finch.-The first important treatise subsequent
to those mentioned above is Sir Henry Finch’s discourse on the
law, the order of which is as follows: Book 1. An introductory
chapter on the Nature and the Sources of the Law, treating of
1Howe's Studies on the Civil Law,
45.
authority; e. g., Sanders, arguing the
case of Stowel v. Zouch, 1 Plowden,
2 The statement of the text must
not be taken as an assertion that the
Roman law was regarded as having
authority in England. A caution may
perhaps be given against the impres-
sion, which otherwise might obtain,
that the books mentioned as having
been moulded after the civil law
were at the same time the great ora-
cle of the common law. Such was the
prejudice at times against the civil
law that those citing the works men-
tioned found it advisable to expressly
repudiate any claim of their being
357, tried about 1563, said that “he
cited Bracton not as an author in the
law, for he said that Bracton and
Glanville were not authors in our
law.” Dyer, Justice, in the same case,
however, quoted Glanville without,
any such reservation. These expres-
sions show the prejudice of the period,
and, instead of Sustaining the position
that Bracton had no weight and the
civil law no standing, demonstrate
that, in cases where the common law
was silent, the civil law was referred
to as to furnishing a safe analogy.
40 INTRODUCTION. [$ 34.
the Law of Nature, devoting a chapter to the Law of Reason,
which he says “is of such singular and incomparable use that
it rules as lord paramount over the law, and even overrules
the positive law; and rather than any of these established
rules should fail, the very maxims and principles of the posi-
tive law will yield as a higher and more perfect law.” In the
next chapter he states that these rules are of two sorts, some
taken from foreign learning, divine and human, the last proper
to law itself.
He then states a view which has exerted great influence in
the development of the common law of England. “Of the first
sort are the principles and sound conclusions from foreign learn-
ings; out of the best and very bowels of divinity, grammar,
logic; also from philosophy natural, political, economics, moral,
though in Our reports and year books they come not under the
same terms, yet the things which there you find are the same;
for the sparks of all sciences in the world are raked up in the
ashes of the law; and well doth one say, Won ea praetoris edictis,
zveg; a 12 tabulºs, sed penetus ea intima philosophia hawrienda
juris disciplina est. He that will take the whole body of the
law before him, and go really and judicially to work, must not
lay the foundation of his building in estates, tenures, the gift of
writs, and such like, but at those current and sound principles
of which our books are so full.””
The orderly arrangement of the book begins at chapter two.
IFor it the author claims that, “as concerning the method, this
only of all books of law is without precedent.” Whether he
means without precedent in the English law or not is uncer-
tain, but the method consists in stating the territorial divisions
of the realm, followed by the Law of Persons and the Law of
Property (or Things), Criminal Law, and Civil Procedure.
The important position of Finch's performalice of the science
of law is stated by Blackstone, whose views will be given after
speaking of the method of Lord Bacon.”
1 Chancellor Kent states that this
work was published in 1613 (1 Kent,
Com. *509), but Justice Iredell states
that the first edition appeared in 1579.
Chisholm v. Georgia, 2 Dall. *437.
2 Bacon's position in the domain of
jurisprudence is well stated by Hastie
in his Outlines of Jurisprudence, p. xii.
“The fertile genius of Bacon was at
home in the sphere of law, but his
very familiarity with its details, and
his official subordination to its au-
thority, made his handling of the
methods of jurisprudence in his en-
§ 34.] INTRODUCTION.
41
Zord Bacon.—That Lord Bacon contemplated an elaborate
treatise on the law, basod upon an orderly method, is stated in
his proposal to furnish such a work if he could secure the pa-
tronage of the king. The details and the outline of the work
were never made public. This much of the order, however,
may be surmised from his own statement. He says: “I con-
sider, therefore, that it is a true and received division of the
law into “jus publicum,’ and “privatum,’ the one being the
sinews of property and the other of government. “Jus pub-
licum,’ I will divide, as I hold it fittest for the present pur-
pose, into four parts. The first, concerning criminal causes,
which, with us, are truly accounted “publici juris,” because
both prejudice and the prosecution principally pertain to the
crown and public estate. The second, concerning the causes
of the church. The third, concerning magistrates, officers and
courts; wherein falleth the consideration of your majesty's
regal prerogative, whereof the rest are but streams. And the
fourth, concerning certain special and political laws, usages
and constitutions, that do import the public peace, strength and
the wealth of the kingdom. In which part I do comprehend
not only constant Ordinances of law, but likewise forms of ad-
ministration of law, such as are the commissions of the peace,
the visitations of the provinces by the judges of the circuits,
and the like.”
Of the method of Lord Bacon, and the other writers which
should be noticed here, Blackstone, in the preface to his Analy-
sis, makes the following very just remarks:" . -
“Fitzherbert and Brooks, and the subsequent authors of
abridgments, have chosen a method the least adapted of any
cyclopaedic survey of human science the concrete details of law, and an-
less novel and incisive than in the
case of other forms of knowledge.
Be indeed recognized the science of
universal jurisprudence as the crown
of all human philosophy, emphasized
its essential connection with the art
of government, and pointed to the
cardinal importance of an investiga-
tion of the sources of law; and, faith-
ful to the practical spirit of the ju-
irisconsult and his own orderliness of
thought; he has given many sugges-
tive hints regarding the treatment of
ticipated not a few of the later coln-
ceptions of legal reform. But he
inaugurated no important new
method in this sphere, nor did he
point the way to any permanent
universal discovery as to the nature
of right.”
1 This Analysis is scarce and inac-
cessible to most members of the
profession. It was published in 1756.
The preface quoted from is to the
edition of 1858.
42 INTRODUCTION.
[$ 34.
to convey the rudiments of a science; namely, that of the al-
'phabet. Zord Bacon, in his Elements, hath purposely avoided
any regular order, selecting only some distinct and disjoined
aphorisms, according to his own account of them; which, how-
ever, he hath expounded in so excellent a manner that the nar-
rowness of his plan is therefore the more to be regretted.
Jord Coke.—“The Institutes of Sir Edward Coke are unfortu-
mately as deficient in method as they are rich in matter; at
least the two first parts of them, wherein, acting only the part
of a commentator, he hath thrown together an infinite treasure
of learning in a loose, desultory order.
“Dr. Cowel hath indeed endeavored to reduce the law of Eng-
land, in his Latin Institutions, to the model of those of Justin-
ian. And we cannot be surprised that so forced and unnatural
a contrivance should be lame and defective in its execution.”
1 The author has searched in vain
for any indication of the outline
which Lord Bacon would have
adopted, and it seems plain that he
chose rather to let his plan remain
unknown than to give it freely to
the world. He states in his proposal
that the completion of his design
would demonstrate whether he or
Lord Coke were the greater lawyer.
It is a plausible conjecture that his
triumphant rival may have had suc-
cess in supressing a performance
which might have left Bacon the
bright particular star in the law as
he was in other departments of learn-
ing. No one familiar with the char-
acter of Lord Coke will doubt his
readiness to do such an act, and he
had the opportunity.
2. It is not quite clear whether this
statement is intended to condemn
the arrangement of the Institute, or
merely to assert the impossibility of
undertaking to arrange the laws of
one country on an outline adapted
to the statement of another sys-
tem. If the writer has intended
this, the remark is a just one. The
statement of Walker in his intro-
duction to American law expresses
the same idea concerning the use
of Blackstone's outline. He says:
“This work, admirable as it is, was
written for English students, and
of course contains much that is.
inapplicable to this country. The
American student, who reads it with-
out a guide, obtains many erroneous
impressions, and much useless learn-
ing. We have innovated upon the
institutions of our English ancestors
with an unsparing hand; and not
merely in minute details, but also in
fundamental principles. We cannot,
therefore, find in Blackstone an ac-
curate outline for American law. Our
great desideratum is, a work which
would be to us precisely what that
work is to the English. And that
man should be a great public bene-
factor who should Americanize
Blackstone's Commentaries; that is,
who should give this work with just
such additions, omissions and cor-
rections as would make it an accu-
rate exposition of American law; Or,
what were still better, who should
equal the style and manner of Black-
stone in an original work upon the
laws of his own country.”
§ 34.] INTRODUCTION. 43
“Sºr Henry Finch's Discourse of Law is a treatise of a very
different character. His method is greatly superior to all that
were before extant; his text is weighty, concise, and nervous;
his illustrations are apposite, clear and authentic. But, with
all these advantages, it is not sufficiently adapted to modern
use; since the subsequent alterations of the law, by the aboli-
tion of military tenures, and the disuse of real actions, have
rendered near half of his book obsolete.
Wood’s Institute."—“Dr. Wood has effectually removed this
Objection, but has fallen into the contrary extreme; his Institute
being little more than Finch's Discourse enlarged, and so thor-
Oughly modernized as to leave us frequently in the dark with
regard to the reason and Origin of many still subsisting laws
which are founded in remote antiquity. And as in some titles
his plan is too contracted, in others, also, it seems to be too dif-
fuse. Upon the whole, however, his work is undoubtedly a
valuable performance;” and great are the obligations of the
student to him, and his predecessor, Finch, for their happy prog-
ress in reducing the elements of law from their former chaos
to a regular methodical science. Yet, as neither could be fol-
lowed entirely in the proposed course of academical lectures, it
was judged the most eligible way not to adopt them in part,
especially as there were extant the outlines of a still superior
method, sketched by a very masterly hand. -
Jord Hale's Analysis.- “For, of all schemes hitherto made
public for digesting the laws of England, the most natural
and scientific of any, as well as the most comprehensive, ap-
peared to be that of Sir Matthew Hale, in his posthumous
Analysis of the Law. This distribution, therefore, hath been
principally followed, with what variations the learned reader
will easily perceive from the ensuing abstract; and it may be
no unprofitable employment for the student to learn by com-
paring them. For these the compiler thinks it unnecessary to
give his reasons. For, since those who have gone before him
have successively deviated from each other's plan, he hopes to be
excused if, in order to adapt some things the better to his own
capacity, he frequently departs from them all, having in gen-
1 Published in 1722. and frequently cited in Westminster
2 Chief Justice McKean said: Hall.” Stanet's Case, 1 Dall. 357.
“Wood is a writer of great authority,
44 INTRODUCTION. [$ 35.
eral rather chosen, by compounding their several schemes, to
extract a new method of his own, than implicitly to copy after
any.”
SEC. 35. The Divine Right of Sovereignty Revived in Eng-
land.— The next step in the Orderly progress of the investi-
gation brings us again to an examination of the system of
government administered in Great Britain, and it will suffice
our purpose to deal with the period intervening between the
time of Elizabeth and the separation of the American colonies
from England. Attention should be directed to the fact that
an investigation of the science of government differs from the
Study of constitutional law in nothing excepting possibly in so
far as it partakes of a scientific character. Constitutional law,
as a topic of legal study intended to indicate and mark out a
definite field of study, is a term of modern invention. Pro-
fessor Dicey affirms that the term is not employed by Black-
stone." The term “Constitutional Law'” originated doubtless
from the fact of the existence of a written constitution and a
habit of testing the validity of laws by the constitution.”
On the basis of the regal authority exercised by the crown
of Great Britain, Lord Bacon says, speaking of the time of
James I: * “But I demand, Do these officers or operations of
law evacuate or frustrate the Original submission, which was
natural? or shall it be said that all allegiance is by law? No
more than it can be said that “potestas patris,’ the power of
the father over the child, is by law; . . .
yet no man will
1 Law of Const., 6.
2 Professor Dicey says of Black-
stone's Commentaries: “Of constitu-
tional law as such there is not a word
to be found in his Commentaries.
The matters which appear to belong
to it are dealt with by him in the
main under the head “Rights of
Persons.” The book which is thus
entitled treats, inter alia, of the par-
liament, of the king and his title, of
master and servant, of husband and
wife, of parent and child. The ar-
rangement is curious, and certainly
does not bring into view the true
scope or character of constitutional
law. This, however, is a trifle. The
book contains much real learning
about our system of government. Its
true defect is the hopeless confusion,
both of language and of thought, in-
troduced into the whole subject of
Constitutional law by Blackstone's
habit — common to all the lawyers of
his time—of applying old and in-
applicable terms to new institutions,
and especially of ascribing in words
to a modern and constitutional king
the whole, and perhaps more than
the whole, of the powers actually pos-
sessed and exercised by William the
Conqueror.” Law of Const., 7.
* Argument on Post Nati of Scot-
land. Works, vol. II, p. 169.
§ 35.] INTRODUCTION. 45
affirm that the obedience of the child is by law, though laws in
some points do make it more positive; and even so it is of
allegiance of subjects to hereditary monarchs, which is cor-
roborated and confirmed by law, but is the work of the law of
nature, and therefore you find the observation true
that law-givers were long after their first kings, who governed
for a time by natural equity without law.” He concludes: “I
shall hardly consent that the king shall be called only our
zightful sovereign or our lawful sovereign, but our natural liege
sovereign, as the acts of parliament speak; for, as the common
law is more worthy than the statute law, so the law of nature
is more worthy than them both.” -
His treatment of the subject of government is equally charac-
teristic. He says: “Concerning government, it is a part of
knowledge, secret and retired in both these respects in which
things are deemed secret; for some things are secret because
they are hard to know, and some because they are not fit to
utter.” 1 w
We are told by Blackstone that the glorious Queen Elizabeth
herself made no scruple to direct her parliaments to abstain
from discoursing of matters of state; and it was the constant
language of this favorite princess and her ministers that even
that august assembly ought not to deal, to judge or to meddle
with her majesty’s prerogative royal; and her successor, James I,
who had imbibed high notions of the divinity of sovereignty,
ymore than once laid it down in his speeches that it is assump-
tion and blasphemy in a creature to dispute what Deity may
do; so it is presumption and sedition in a subject to dispute
what a king may do in the height of his power. “Good Chris-
tians,” he adds, “will be content with God’s will as revealed
in his Word,” and good subjects will rest in the king's will as
revealed in his law.”
Blackstone himself, writing over a century and a half later,
of course does not expressly adopt the theory of divine right,
but says: “The subject was ranked (in the time of Elizabeth
and James) among the Arcana Imperii, and, like the mysteries
of the bona dea. was not ever to be pried into by any but such
11 Bacon's Works, p. 238, “Ad- Westminster Confession of Faith,
wancement of Learning.” prepared under his direction.
* Probably as expounded in the
46 INTRODUCTION.
[$ 36.
as were initiated into its service; because perhaps the exertion
of the one, like the solemnities of the other, would not bear
the inspection of a rational and sober inquiry.” It is quite
evident that, notwithstanding Magna Charta, the Science of
government had not, at the time of Lord Bacon, taken any
great strides forward.
SEC. 36. Puritanism and Religious Liberty.—As having an
important bearing upon events taking place subsequent to the
reign of King James, we must note the fact that in 1534 the
crown of England, whose king was then Henry VIII, was de-
clared to be the head of the church. Elizabeth and James were
both Protestant, and during the times of their reigns the sect
known in history as Puritans became prominent. •
The Puritans and Their Doctrines.—Besides their religious
views Hume says of them: “ISut there was another set of opin-
ions adopted by these innovators which rendered them in a
peculiar manner the objects of Elizabeth’s aversion. The same
bold and daring spirit which accompanied them in their ad-
dresses to the Divinity appeared in their political speculations,
and the principles of civil liberty which, during some reigns,
had been little avowed in the nation, and which were totally in-
compatible with the present exorbitant prerogative, had been
strongly adopted by this new sect. Indeed, so absolute was the
authority of the crown, that the precious spark of liberty was
kindled and preserved by the Puritans alone, and it is to them
that the English owe the whole freedom of their constitution.”
It must not be understood that the Puritans or any religious
sect advocated in terms what is now understood in the United
11 Blk. Com. *238. Prof. Hammond,
in his edition of the Commenta-
ries, says: “But B. could not, con-
sistently with his political beliefs,
accept the doctrine of divine right
as the basis of the state's power to
command in things morally indif-
ferent. He had to seek some other
source of the laws which prohibited
things not mala in se. Here he seems
to be open to criticism for the lack
of precision and uncertainty in his
views. He falls back on compact,
without apparently perceiving the
inconsistency between this doctrine
and his definition, an inconsistency
of which his first American critic,
Wilson, has made effective use, show-
ing that B.'s definition ranked him,
in spite of himself, with the support-
ers of divine right and absolute
power.” Hammond's Blackstone,
p. 111, note.
2 Students' Hume, p. 331. Refer-
ences to historical matters of this
character can be found in any of the
histories of England, and on consti-
tutional questions, Stubbs, May, Hal-
lam or Macintosh may be referred to.
§ 37.] INTRODUCTION. 47
States when we use the term “religious liberty.” In fact, the
practice of the Puritans and Pilgrims in their new homes in
America are devoid of the spirit of religious toleration.
Passing from the time of Elizabeth and James with the re-
mark that the rulers did not expel the Puritans for their religious
sentiments alone, but for the more material things of their po-
litical dogmas, we reach the time of Charles the First, just prior
to the Petition of Rights. And of the Puritans Hume again
says: “We may observe that the appellation stood for three par-
ties, which, though commonly united, were yet actuated by very
different views and motives. There were the political Puritans,
who maintained the highest principles of civil liberty; the Puri-
tans in discipline, who were averse to to the ceremonies and
Episcopal government of the church; and the doctrinal Puri-
tans, who rigidly defended the speculative system of the Swiss
reformers. In opposition to these stood the Court party.” "
The leaders in the House of Commons, John Hampton, Pym,
and Elliot, were political Puritans.
SEC. 37. Taa’ation and Representation.—The struggle between
Charles the First and the Commons took definite shape in Hamp-
ton’s resistance to the ship-money tax and forced loans; and this
memorable struggle between the Crown and the Commons in
reference to the right of the king to impose taxes or raise a
revenue without the consent of the Commons culminated in the
Petition of Rights. The whole tenor of the petition is simply a
reference to the customs of the time of King Edward the First
and to the statute commonly called Statutum. De tallagio non
concedendo, that no tallage or aid should be levied by the king
without the assent of the bishops, archbishops, earls, knights,
barons, burgesses, etc.; then to the statute of King Edward III,
the Confirmatio cartarum, above referred to, by which it was
enacted that no person should be compelled to make any loan
to the king, and then reciting violations of the same. It re-
ferred to the great charter of liberties, and concluded with the
very humble prayer against any taxation, except by consent of
parliament. ... * .
Being peculiarly involved in the controversy between Eng-
land and the American colonies, the Confirmatio cartarum and
the Petition of Rights are of greater interest, because they di-
1 Students' Hume, p. 396.
48 INTRoduction. [$ 38.
rectly referred to the subject of taxation, expressly denying that
power to the king, but not touching upon the power of parlia-
ment.
SEC. 38. Eactraordinary Jurisdiction of Parliament — Con-
structive Treason — Ea. Post Facto Laws — Bills of Attainder.
Twelve years after the Petition of Rights occurred the impeach-
ment of the Earl of Strafford and his trial in parliament, which
contains so instructive a lesson upon the state of constitutional
law in England that it is worthy of the time which it will
take any student to investigate it. In it will be seen the idea.
of constructive treason, and the absolute power of the king and
the House of Lords over the life and property of any subject,
under that powerful weapon, the bill of attainder. Strafford
was impeached' by the House of Commons for the crime of
treason—a crime which should be defined by all governments.
High treason in England was an offense against the king, and,
to amount to a crime, necessarily involved some overt act; but
the hatred of the people, justly excited by the atrocious con-
duct of Strafford, inflamed them to such a degree that they
invoked a doctrine, dangerous to themselves, viz., of construct-
ive treason, and demanded his death. Lord Digby, the prose-
cutor of Strafford, pointed out to them clearly that legally they
could pass no judgment of death against him, but with strange
inconsistency they yielded up the claim of a judicial sentence
and demanded his death by a bill of attainder. The power in
parliament in that respect was clearly explained by Lord Digby
in his celebrated speech, April 21, 1641. “I know,” said he,
“Mr. Speaker, there is in parliament a double power of life and
death, [the Orie] by bill a judicial power, and the [other a] leg-
islative power. The measure of one is what is legally just;
of the other, what is prudentially and politically fit for the good
and preservation of the whole; but these two, under favor, are
not to be confounded in judgment.”
To the clamor of the Commons, the lords and the king yielded
the legal demand and passed a bill of attainder forfeiting his
life, his estates, and corrupting his blood. And here let us re-
mark the character of a law under which the people of England,
through their representatives, the Commons, took the life of
Strafford. “Acts of parliament,” says Blackstone, “to attaint
1 The student must remember that impeachment is but an accusation.
§ 38.] INTRobuction. 49
are to all intents and purposes new laws, made pro re nata,
and by no means execution of such laws as are already in
being, but an impeachment proceeding before the Lords by the
Commons in parliament is a prosecution of the already known
and established law.” " - -
These bills of attainder are from their nature ea post facto
laws; they proceed on the principle that while courts, and
the House of Lords while sitting upon a trial of an impeach-
ment is a court, are to be governed by the strict letter of the
law as previously known and established, parliament, in exer-
cising the high sovereignty of the state, may on great and
Crying Occasions arrest some enormous offender in the midst.
of his crime and inflict upon him the punishment he so richly
deserves, even in cases where, owing to a defect in the law,
it is impossible to arrest him by means of impeachment or
through the ordinary tribunals of justice. The Commons them-
Selves insisted upon waiving strict legality and taking advan-
tage of a bill of attainder. It is obvious to the American
reader that such a man as John Quincy Adams, who daily per-
sisted for so long a time in presenting petitions to congress
amid the storm of abuse from the opposition, might readily be
deemed by some an enormous offender; but our forefathers, in
the American constitution, wisely prohibited the passage of any
bill of attainder or ea post facto law.” The case stands in his–
tory the monument of the danger of leaving unchecked power
in any hands. No better argument could be given to main-
tain Strafford's sentence than that the end justified the means;
an argument which comes with bad grace from a people striv-
ing for constitutional liberty, even though the act of attainder
was strictly within the constitutional and customary powers of
the English parliament. England was now in the whirlpool of
civil strife, and in less than ten years, Charles, their “liege
lord” and natural sovereign, the “fountain of justice and
honor,” their “hereditary king,” against whose person any act of
violence was treason, was by the people of England beheaded.
14 Black. Com., p. *259. sion of the nature of eac post facto
*An eac post facto bill fixing a pen- acts and bills of attainer are: Calder
alty less than death was called a bill v. Bull, 3 Dall, 386 (1798); Ex parte
Of pains and penalties. Among the Garland, 4 Wall. 333; Cummings v.
notable cases involving the discus- State of Missouri, 4 Wall. 277.
50 INTRODUCTION. [$ 39.
$.
The doctrine of divine right of kings expired with Charles I.
It was opposed to all traditions of Saxon or Norman England.
It has historical interest now as illustrating the extravagant
claims men will make in order to accomplish political designs.
SEC. 39. Constitutional Conventions in Jºngland — Transfer
of Allegiance.—The interruption of the hereditary dynasty of
England by the commonwealth illustrates the desirability of
providing in a constitution orderly methods for changing it.
Sir John Dalrymple says of the trial of Charles I: “The re-
publican and puritanical Commons, with a democratic spirit,
brought their sovereign, under the forms of justice, like a com-
mon member of the community, to a public trial and a public
execution. With the same leveling hand they laid the peerage,
the church, the parliament, and the law itself, in the dust.” The
Orderly course of affairs being interrupted and the crown de-
posed, it devolved upon the people to determine upon the course
to be pursued. The assemblages of the national council of this
period are therefore called convention parliaments.
The restoration of Charles II, and the abdication of James II,
are simply illustrations of the chaos into which the system of
English constitutional law had drifted. The parliament which
placed King William on the throne and fixed on the preroga-
tive presents the peculiar spectacle of the English people, in
convention assembled, engaging in great and original acts of
political legislation without the presence of the sovereign.
By Blackstone and other theoretical writers the common-
wealth is not recognized as a lawful government; but that
government which exists is the lawful if not the rightful gov-
ernment." - -
Very naturally, James Wilson, in his speech in vindication
of the colonies in 1775, inquires, “Was the convention of the
Barons at Runnymede authorized by the forms of constitu-
tion? Was the convention of Parliament that recalled Charles
the Second and restored the monarchy authorized by the forms
of the constitution ? Was the convention of Lords and Com-
mons that placed King William on the throne authorized by
the forms of the constitution?” r
Notwithstanding the arguments of courtiers and partisans,
1 See Luther v. Borden, 7 How. 1. -
$ 40.] INTRODUCTION. 51
who, by sophistry and reasoning, change conquest into succes-
sion, or a contract into a submission to a natural lord, the his-
torical fact remains that Charles the Second became king of
England by the consent of the English people; likewise Will-
iam IV. Arguments that a monarchy is stronger to suppress
treason, stronger to protect the government, stronger to defend
the individual, than a republican form of government, ignore
all the eventful incidents in English history recalled by the
names of Magna Charta, the Petition of Rights, the common-
wealth, the convention parliament that restored the monarchy,
the acts of settlement, the execution of Elliot and Stratford,
John Hampton and the ship-money tax, and the American
Revolution. The whole error of the Tory party in England at
the time of the American Revolution consisted in basing the
powers of government upon a theory which had no place in
their system. The main body of the English people never as-
sented to this view. Citizens of the United States need but
refer to the trial of Burr, the attempts of states to secede, the
attempts during the civil War to apply the rules of martial or
military law to individuals residing in sections of the Union
not occupied by either army, the impeachment and trial of
President Johnson, and numerous cases arising under the post-
bellum amendments of the constitution, to assure himself that
the framers of our national government established a govern-
ment of laws and not of men, conceived in wisdom and clothed
with power. -
SEC. 40. American Ideas of Government and Allégiance to
the King.—The controversy between the American colonists
and Great Britain, and which resulted in their final separation,
related entirely to questions of constitutional law.”
1 See Ex parte Milligan, 4 Wall. 2;
Johnson v. Jones et al., 44 Ill. 142;
Ex parte Yarborough, 110 U. S. 652;
Ex parte Virginia, 100 U. S. 340; Ex
parte Garland, 4 Wall, 333; Cum-
mings v. State, 4 Wall. 277.
2 Edward Everett, in an address on
the fiftieth anniversary of the Dec-
laration of Independence, said: “The
oppressions which aroused them had
assumed, in their day, no worse form
than that of a pernicious principle.
No intolerable acts of oppression had
ground them to the dust. They were
not slaves, rising in desperation from
beneath the agonies of the lash, but
free men, Snuffing from afar ‘the
tainted gale of tyranny.” The worst
encroachments on which the British
ministry had ventured might have
been borne consistently with the
practical enjoyment of many of the
advantages resulting from good gov-
ernment. On the score of Calcula-
4.
52 INTRODUCTION. [$ 40.
The questions arose in a threefold aspect: First. The nature
of the bond between the subject and the crown, involving the
extent of the king's prerogative. Second. The nature of the
modes of acquisition by which the subjects had acquired the ter-
ritory embraced within the boundary of the several colonies.
Upon this depended the question as to whether the colonists
were entitled to the privileges and immunities of the common
law as colonists, or whether they occupied the servient position.
of a conquered people. Third. Really depending upon and
involved in the second, the right of the British parliament to
legislate for the colonists, or to bind them by legislation.
These questions, it will be seen, relate to two entirely dis-
tinct branches of governmental authority, viz.: the king as
king, and the parliament as the great legislative body of the
kingdom.
The question of religious toleration dropped entirely out of
view" in this struggle, to re-appear and reach its final Solution
at the hands of American statesmen. -
tion alone, that generation had much
better have paid the duties on glass,
painters’ Colors, stamped paper and
tea than have plunged into the ex-
penses of the Revolutionary war.
But they thought not of shuffling off
upon posterity the burden of resist-
allC63. . . The British ministry,
at that time weaker than it had ever
been since the infatuated reign of
James II, had no knowledge of polit-
ical science but that which they de-
rived from the text of official records.
They drew their maxims, as it was
happily said of one of them, that he
did his measures, from the file. They
heard that a distant province had
resisted the execution of an act of
parliament. Indeed! and what is the
specific in case of resistance? A
military force—and two more regi-
ments were Ordered to Boston.
Again, we hear that the general
court of Massachusetts Bay has taken
counsels subversive of the allegiance
due to the crown — a case of a re-
fractory corporation. What is to be
done? First try mandamus; and, if
that fails, seize the franchises into
his majesty's hands. They never
asked the great questions, whether
nations, like man, have not the prin-
ciples of growth; whether Provi-
dence has assigned no laws to regu-
late the changes in the condition
of that most astonishing of human
things, a nation of kindred men.
They did not inquire, I will not say
whether it was rightful and expedi-
ent, but whether it were practicable,
to give law across the Atlantic to
a people who possessed within them-
selves every imaginable element of
self-government.” Am. Oratory,
pp. 452, 453.
1 Mr. Justice Wilson says: “The
doctrine of toleration in matters of
religion, reasonable though it cer-
tainly is, has not been long known
or acknowledged. For its reception
and establishment, where it has been
received and established, the world
has been thought to owe much to
the inestimable writing of the cele-
$ 40.] INTRODUCTION. 53
The colonists freely subscribed to the doctrine of allegiance
to the person of the king. They not only admitted, but in-
sisted, that they were British subjects and entitled to all con-
stitutional rights of Englishmen. They claimed the common
law as a birthright, and submitted to certain regulations which
had always been classed under the head of the king’s preroga-
tive, wherein he was regarded as the arbiter of commerce. As
constitutional rights they claimed all of those protected by the
great constitutional charters guaranteeing liberty, and in that
word was embraced the idea of self-government so far as the
same was expressed by the time-honored principle that taxa-
tion and representation were inseparable, and the idea that
a tax was a grant and a gift by the person taxed.
The Navigation Act of the Cromwellian period, passed in
1651, is of peculiar interest. Blackstone says: “But the most
beneficial statute for the trade and commerce of these king-
doms is that Navigation Act, the rudiments of which were
framed in 1650, with a narrow, partial view, being intended to
mortify our own sugar islands, which were disaffected to the
parliament and still held out for Charles the Second, by stop-
ping a gainful trade which they carried on with the Dutch, and
at the same time to clip the wings of those, Our Opulent and
aspiring neighbors. This prohibited all ships of foreign nations
from trading with any English plantations without license
from the counsel of state. In 1651 the prohibition was ex-
tended also to the mother country, and no goods were suffered
to be imported into England Or any of its dependencies in any
other than English bottoms. This act, and many acts subse-
Quently passed of the same nature, were, and professed to be,
merely regulations of commerce, and were not resisted or con-
brated Locke. To the inestimable the practice of it was established in
writings of that justly celebrated America. A law in favor of relig-
man let the tribute of applause be ious freedom was passed in Mary-
plenteously paid; but while immor- land as early as the year one thou-
tal honors are bestowed upon the sand six hundred and forty-nine *
name and character of Locke, why (1649). 1 Wilson’s Works, p. 4.
should an ungracious silence be ob- 1 With this in view it is easy to un-
served with regard to the name and derstand that the states did not con-
character of Calvert 2 Let it be sider that they were surrendering
known that, before the doctrine of anything when committing this sub-
toleration was published in Europe, ject to congress.
54 INTRODUCTION. [$ 41.
sidered illegal in their object, although sometimes considered
oppressive.” -
Finally, in 1764, an act was passed by parliament, avowing in
its preamble that it was for the purpose of beginning a system
of revenue to be raised from the colonies."
The colonies protested promptly against the act of 1764, with
its preamble; resisted the Stamp Act, and resented the declar-
atory act, which asserted that “the king and parliament could
make laws binding colonies in all cases whatsoever,” as a di-
rect menace to their liberties.
“It was not easy to draw the line between laws of trade to
which they held themselves subject, and the general legislation
of parliament, but they considered it clear that their charters
from the crown exempted it from the latter giving it to their
own legislatures.”
The only theory upon which the jurisdiction of parliament
to bind the colonists by legislation could be upheld was to class
them as occupying conquered territory.”
SEC. 41. Division of Opinion in England.—The struggle was
not confined to the parties on either side of the Atlantic. In
parliament Chatham and Burke vigorously defended the rights
of the colonies, while Mansfield and Grenville (prime minister)
maintained the Supremacy of parliament.
The first arguments, led by Chatham on one side and Mans-
field on the other, took place in January, 1766. Chatham dis-
tinguished between internal taa’ation and commercial regulations,
and maintained that from immemorial custom, and from the fact
of the existence of legislatures in the colonies and the lack of
representation in parliament, together with the idea that taxes
were grants from the people, it must follow that taxes could
constitutionally be levied upon the colonies only by a legisla-
tive act of their own.” -
1 This act was claimed to be di- directly applied to the colonies is
rectly in the teeth of the Confirmatio
cartwrum, which lies at the basis of
the principle allowing taxation only
by representation.
2 Massachusetts State Papers, 351;
Johnson, Lessee, v. M'Intosh,8Wheat.
570–597.
3 The question of the extent of the
legislative power of parliament as
discussed more fully than elsewhere
by Mr. Justice Wilson. His discourse
on that subject, with the observa-
tion of the author appended as notes
thereto, is found in 2 Wilson's Works
(last ed.), 505 et seq.
4 See also Johnson, Tessee, V. McIn-
tosh, 8 Wheat. 510–597.
§ 42.] INTRODUCTION, 55
Lord Grenville affected to be unable to make the distinction,
and relied upon the Navigation Act and subsequent acts of that
character. 3.
Lord Mansfield also denied any distinction between external
and internal taxation, claimed that the colonies were virtually
represented in parliament, and classified the colonies into three
kinds, viz.: the charter colonies, the proprietary governments,
and the king's colonies. These debates resulted in the repeal
of the Stamp Act and the passage of the declaratory act just
mentioned. p
SEC. 42. Blackstone's Novel Position.—It must be remem-
bered that volume 1 of the Commentaries, which contains a
discussion of the character of the colonies and powers of par-
liament in reference to them, was published in November, 1765,
and also that Lord Mansfield was a patron of Blackstone. The
similarity of the doctrines of Mansfield and Blackstone sug-
gests the query as to whether Mansfield was following Black-
stone, or Blackstone was quoting the opinion of his influential
friend. An examination discloses that Blackstone re-edited
volume one in 1766, within a year from its first publication; and
while in the first edition there was nothing on this subject
which would seriously have incensed an American reader, al-
though he clearly erred in claiming the colonies as occupying
conquered territory—the significance of which was that the in-
habitants of conquered territory could not claim the rights of
constitutional representation as a part of the common law,
the subject was entirely changed in the second edition to con-
form to the opinion of Mansfield and the predominant ministry
in England. To be specific, volume 1, pages 101, 107, 108 and
109 of subsequent editions, show changes at page 101 that sub-
ordinate dominions may be bound by parliamentary laws;
practically the whole of page 101 being added. Page 107 is
changed so as to restrict the colonies to the English constitu-
tion as it stood at the time of Elizabeth and James, and hold-
ing them subject to the regulation of parliament in matters of
property, of police and of revenue, and that parliament might
new-model their whole constitution. That the common law
of England, as such, had no authority in the colonies, and that
they were subject to the control of parliament. He classified
the colonies into provincial establishments, proprietary govern-
56 INTRODUCTION. [$43.
ments and charter governments. They are denominated as
“Our more distant plantations in America.”"
“Studies,” said Mr. Burke, in commenting upon the educa-
tion of the people of the colonies in his speech advocating con-
ciliation with America in 1775, “studies pass into habits,” and
as the Commentaries of Blackstone is still frequently the first
book placed in the hands of the American student, we are in-
terested in the fact that the first volume of Blackstone, as it
now reaches the hand of the student, contains views of the law
which were diametrically opposed to the principles of the consti-
Żution of Great Britain as understood by our ancestors; in fact,
as we shall see further on, the Commentaries express views as
to the definition and nature of law and government which are
not only directly in conflict with the principles accepted in
America, but which are now obsolete,” or entirely repudiated
in England, as either founded in error or maintained for polit-
ical reasons.””
SEC. 43. Reason for Renouncing Allegiance.—We have now
arrived at a period in our examination as to the nature and
progress of law and government when our attention must
shortly be directed to a minute analysis of the laws of the
United States; but before entering upon that subject we should
understand the nature of the government of England as it ex-
isted at the period of the American Revolution, for the reason
that our ancestors were subjects of that government, rendering
cheerful allegiance to the king, and agreed fully with Montes-
quieu, as quoted by Blackstone, “that the English was the only
nation in the world in which political or civil liberty was the
direct end of its constitution.” They renounced their allegiance
to the king (they owed it to no one else) because of many ar-
bitrary acts committed by him, and finally because he “com-
Băned with others (parliament) to subject us to a jurisdiction
foreign to our constitution and unacknowledged by our laws
by giving his assent to their (parliament's) acts of pretended
Against this, see Johnson v. MC- 2 Broom & Hadley, Com., p. 1; Ham.
Intosh, 8 Wheat. 574; Martin v. Wad- Black., Int., p. 277.
dell, 16 Pet. 403; Canal Com. v. Peo- 3 Stockdale v. Hansard, 1 Ad. & El..
ple, 5 Wend. 445; Mayor v. Hart, 95 p. 1 (36 E. C. L. 1), opinion of Cole-
N. Y. 450; Gould on Waters, p. 67. ridge, J., pp. 119, 121; Denman, C. J.,
p. 70. -
§§ 44, 45.] INTEODUCTION. 57
legislation.” Parliament and the king were exercising such
powers only as Blackstone teaches to be constitutional.
SEC. 44. The Ea:ecutive Power as Eagounded by Blackstone.
First let us notice the character and prerogatives of the king
as pictured by Blackstone. “The prerogative,” he says, “is
limited by bounds so certain and notorious that it is impossible
he should mistake or legally exceed them without the consent
of the people,” or without a violation of that original contract
which in all states impliedly, and in ours (England) most ex-
pressly, subsists between the prince and the subject.” The
feudal idea of a personal allegiance remained, with the notion
that by that contract the king was in some mysterious way
clothed with a peculiar, extraordinary, regal power and dig-
nity." His first attribute was sovereignty or pre-eminence, with
certain attributes of a great and transcendent nature, by which
the people are led to consider him in the light of a superior
being, and pay him that awful respect which may enable him,
with greater ease, to carry on the business of government.”
Eſe had the right of dealing with foreign nations, of making
war and peace, and, by his fiat, out of a kitchen scullion he
could create a peer of the realm," much as Charles the First
ruined Thomas Wentworth, at the same time transforming his
nature from a strong supporter of Hampton and Elliott and
the Petition of Rights into a fitting prime minister of a despot.
He could establish ports," regulate commerce,” was the head of
the church as well as state,” and had many more prerogatives
relating to his revenue; but the power of taxation, annual and
perpetual, levying customs and duties was in the House of Coſh-
mons by their gift and grant." The king was also the fountain
of honor and justice.” .
SEC. 45. The Legislative Power of Parliament—Iſaving
taken this glance at the Sovereign king, let us see the parlia-
ment, as described by the same hand. “The power and jurisdic-
tion of parliament,” says Sir Edward Coke, “is so transcendent
and absolute that it cannot be confined for causes or persons
1 Declaration of Independence. 62 Black. Com., p. 240.
? Vol. 1, p. 141. . 7Id., p. 264.
*Id., p. 237. - 8Id., p. 273.
4Id., p. 239. - 9Id., p. 280.
*Id., p. 241. 191d., pp. 307, 308, 313, 314.
58 INTRODUCTION. [$ 45.
within any bounds.” The quotation from Coke omits this.
important qualification between the words “parliament” and
“it:” “for making of laws and proceeding by bill.” This is
clearly pointed out by Judge Wilson to mean nothing more
than as Coke puts it, that parliament is the Supreme legis-
lative authority.” “Parliament hath sovereign and uncontrol-
lable power in making . . . and ea pounding of laws concern-
ing matters of all possible denominations. This being the
place where that absolute despotic power, which must in all
governments reside somewhere, is intrusted by the constitu-
tions of these kingdoms.” “Sovereignty and legislature,” he
had said in connection with his definition of law, “are indeed
convertible terms.” Parliament can remodel the succession,
alter the established religion; the king was the head of the
church, but parliament could change and create afresh the con-
stitution of the kingdom and of parliament themselves; in short,
do anything not naturally impossible. The power of parlia-
ment is absolute and without control.” As a high court, parlia-
ment hath its peculiar law, the lea, et consuetudo parliamenti; a
law which is ab omnibus quaerenda, a multis ignoranța a paucis
cognito." The maxims and rules of their proceeding are not
defined and ascertained by any particular stated laws." The
privileges of parliament are likewise very large and indefinite.
The dignity and independence of the houses are, in great meas-
ure, preserved by keeping their privileges indefinite.”
This is sufficient to denote the two branches of sovereign
powers in England: the one, a sovereign whose authority is.
limited and circumscribed by definite boundaries; the other,
absolute and uncontrolled, expressly asserting the possession.
of a law unto itself. This was the doctrine accepted and acted
upon at the time by the war party, although it has finally been
shown to have been an error by the decision in the case of Stock-
dale v. Hansard, where the whole doctrine, as laid down by
I3]ackstone, is entirely wiped away.
Lord Chief Justice Denman, in his opinion in that case, said
1 Id., p. 160. - 41 Black. Com., p. 46.
21 Wilson's Works, 164. *Id., p. 162.
81 Black. Com., p. 160. This princi- 6 Id., p. 163. -
ple is denied and repudiated by Cole- 7 Unfounded. Hansard v. Stock-
ridge, J., Stockdale v. Hansard, 9 A. dale, supra, Patterson, J.
& E. 1 (36 E. C. L. 119) [1838]. 81 Black. Com., p. 164.
§ 46.] INTRODUCTION. 59
of an opinion of Blackstone of that time, that “his remarks on
the state of public feeling rather evinces the spirit of a polit-
ical partisan than the calmness and independence which be-
comes the judicial seat. We know now, as a matter of history,
that the House of Commons was at that time engaged in unison
with the Crown in assailing the just rights of the people.”
Coleridge, J., in the same case, said: “No lawyer, I suppose,
now supports the doctrine of Blackstone that the dignity of
the Houses and their independence are in a great measure se-
cured by keeping their privileges indefinite.”
SEC. 46. The Science of Government in America.--We may
now turn from the old world to the new, and examine what
progress the science of law and government has made in
America, for at that time it existed only as a science. The
government was still in control of the despotic power so vividly
described by Blackstone, and apparently consisted in nothing
else than the art of maintaining Supremacy. John Adams, in
1755, though scarce twenty years of age, wrote to a friend as
follows: “Be not surprised that I am turned politician. This
whole town is immersed in politics. The interests of nations
and all the dira of war make the subject of every conversation.”
In 1765 he published a dissertation of Canon and Feudal law,
“whose object,” says Webster, “was to show that our New
England ancestors in coming to America were actuated by the
desire to deliver themselves from the power of the hierarchy,
and from the monarchial and aristocratical political systems of
the other continent, in which he urges earnestly the necessity
of diffusing general knowledge, and calls on the people to
study and understand their rights and privileges, and makes
use of this very advanced sentiment, that they (the people)
have a right to that most dreaded and envied kind of knowl-
edge, I mean of the character and conduct of their rulers.
Rulers are no more than attorneys, agents and trustees of the
people, and if the cause, interest and trust is betrayed or trifled
away, the people have a right to revoke the authority they
themselves have deputed.”
In January, 1775, Lord Chatham, in a speech favoring the
removal of the troops from Boston, said, referring to papers
136 E. C. L. 70. - 8 Webster's Speech on Adams and
2.36 E. C. L. 121, - Jefferson.
60 - INTRODUCTION. [$46.
transmitted from the American congress, “that for solidity of
reasoning, force of sagacity and wisdom of conclusion, under
such a complication of difficult circumstances, no nation or
body of men can stand in preference to the general conference
at Philadelphia.” A few months later, Mr. Burke, probably
the most learned man in the kingdom upon the subject, speak-
ing in favor of conciliation with America, and referring to the
education of the people of the colonies, said: “In no country,
perhaps, in the world is the law so general a study; the pro-
fession itself is numerous and powerful, and in most provinces
it takes the lead. The greater number of the deputies sent to
congress were lawyers; but all who read, and most do read,
endeavor to obtain some smattering in that science. I have
been told by a book-seller that in no branch of his business,
after tracts of public devotion, were so many books as those on
the law exported to the plantations. The colonists have now
fallen into the way of printing them for their own use. Ihearthat
they have sold nearly as many' of Blackstone's Commentaries
in America as in England.” He quotes from a report of Gen-
eral Gage, “that all the people in his government are lawyers
or smatterers in law, and that in Boston they have been ena-
bled, by successful chicane, wholly to evade many parts of one
of your capital penal constitutions.”
Panegyrics on the constitution are frequent, and often ex-
travagant, but the observations of Professor Bryce, both as to
the character of the work accomplished by its framers, and the
sources from which they drew, are worthy of repetition. He
says: “Yet, after all deductions, it ranks above every other
written constitution for the intrinsic excellence of its scheme,
its adaptation to the circumstances of the people, the simplicity,
brevity and precision of its language, its judicious mixture of
definiteness in principle with elasticity in details. One is there-
fore induced to ask, before proceeding to examine it, to what
causes, over and above the capacity of its authors and the pa-
tient toil they bestowed upon it, these merits are due; or, in
other words, what were the materials at the command of the
Philadelphia convention for the achievement of so great an
enterprise as the creation of a nation by means of an instru-
ment of government. . . . The men of the convention had
1 Hammond quotes him as saying more.
§ 47.] INTRODUCTION.
61
the experience of the English constitution. That constitution,
very different then from what it is now, was even then not
quite what they thought it. Their view was tinged not only
by recollections of the influence exercised by George the Third,
an influence due to transitory causes, but which made them over-
rate its monarchial element, but also by the presentation of it
which they found in the work of Mr. Justice Blackstone.”"
SEC. 47. United States a Leader in the Science of Government.
Framers of the constitution of the United States had approached
the task of framing a national constitution with an equipment
for such work which scarcely could have been gained in any
other manner than that afforded them by the experiences of the
decades which intervened between the time when the natural
alliance between the colonies transpired and the time when it
became apparent to all that the confederation between the states
lacked entirely the national character.
The habit of study which was a peculiar result of the policy
of the colonists, their spirit of free and independent investiga-
tion of the circumstances upon which for nearly a quarter of a
century the very existence of their civil liberties depended, the
right solution of the questions of political science, rendered
the investigation of political science imperative, practical and
thorough. -
The builders of the nation were thoroughly alive to the dig-
nity of the position, the magnitude of their undertaking, and the
probable effect of their experience upon the nations of the world.”
1 Bryce, Am. Com., vol. 1, pp. 25, 26.
It is the false light in which he pre-
sents fundamental principles which
renders the first book of the Com-
mentaries objectionable as a first
book.
2 Mr. Justice Wilson, in his opening
lecture before referred to, said: “The
foundations of political truth have
been laid but lately; the genuine
science of government, to no human
Science inferior in its importance, is
indeed but in its infancy, and the
reason of this can be easily assigned.
In the whole annals of the Trans-
Atlantic world, it will be difficult to
point out a single instance of its
legitimate institution. I will go fur-
ther, and say that among all the
political writers of the Trans-Atlantic
world it will be difficult to point out a
single model of its unbiased theory.”
1 Wilson's Works (last ed.), 20, quoted
by Simeon Baldwin in address to
American Bar Association (1889).
3 Mr. Wilson said in the Pennsyl-
vania convention of 1787: “By adopt-
ing this constitution we shall become
a nation; we are not now one. We
shall form a national character; we
are now dependent on others.” He
proceeded with a remarkable predic-
tion of the influence which American
freedom would exert upon the Old
World. Elliot's Debates, vol. II,
p. 526.
62 INTRODUCTION, [$48.
Many of these great reformers were singularly happy in wit-
nessing the successful accomplishment of their designs and par-
taking of the blessings which they had hoped only to bequeath
to their posterity. Succeeding generations have not failed to
accord to them the full measure of praise, and foreign nations
have felt the reflex influence of American institutions until
one may almost say of the American people in regard to polit-
ical and public questions as was said of Rome in regard to
her system of private law, that “America holds dominion
over the civilized world by the silent empire of her laws.”
Of this happy circumstance Judge Cooley says: “In matters of
government, America has become the leader and the example
for all enlightened nations. England and France alike look
across the ocean for lessons which may form and guide their
people. Italy and Spain follow more distantly; and the liberty-
lowing people of every country take courage from American
freedom, and find augury of better days for themselves from
American prosperity. But America is not so much an example
in her liberty as in the covenanted and enduring securities which
are intended to prevent liberty degenerating into license, and
to establish a feeling of trust and repose under the beneficent
government whose excellence, so obvious in its freedom, is still
more conspicuous in its careful provision for permanence and
stability.”
SEC. 48. For over a century America has maintained its iso-
lation from entanglements seemingly necessary to European
powers. A decade since, Professor Bryce contrasted her posi-
tion in this regard with the condition of the European nations,
and said of her: “America lives in a world of her own, ipso,
suis pollens opibus, nihil indiga nostri. Safe from attack, safe
even from menace, she hears from afar the warring cries of
European races and faiths, as the gods of Epicurus listened to
the murmurs of the unhappy earth spread out beneath her
golden dwellings. Sajuncta a rebus nostris semotague longe.”
PART I.
jºsmºsºmsº
THE LAW OF PERSONS.
(Unus homo sustinet plures personas.)
PERSONAL RELATIONS.
CHAPTER II.
ANALYSIS OF AMERICAN LAW.
SEC. 49. The Use of Words.-The student of American law
encounters at the outset of his course difficulties which are per-
haps more perplexing and less easy for him to solve than any
he will encounter during the progress of his studies. These
are the selection of what to read, for the most of his knowl-
edge must be gained from books; the method of study, for
his education will depend largely upon the methods of study
employed; and lastly, but by no means the least perplexing of
them all, the nomenclature of the law.
The determination of what to read and the methods to be
pursued are generally and properly left to the decision of
those who, as preceptor or professor, guide the steps of the
beginner; but the mastery of the language of the law must of
necessity be the work of the student.
Writing of jurisprudence from the American standpoint, and
of American municipal law for the specific purpose of present-
ing a clear view of its rudiments and elementary principles,
it is well to begin the work by directing attention to the im-
portance of acquiring the habit of an accurate comprehension
of the words which will be constantly made the medium of
expressing ideas.
The first right of every system, says Sir Frederic Pollock, “is
to be judged in its own field, by its own methods, and by its
own work; it cannot be seen at its best, or even fairly, if its
leading conceptions are forced in conformity with an alien
method.” Again the same learned jurist says: “We now realize
that the laws of every nation are determined by their own
historical study, not only as to details but as to structure, and
if we fail to attend to this, we cannot duly appreciate the sys-
tem as we find it at a given time.”
These expressions suggest clearly enough that every particu-
lar system of municipal law will naturally have certain fun-
64 ANALYSIS OF AMERICAN LAW, [$ 50.
damental principles peculiar to itself, while at the same time
it constitutes in its institutions a part of general jurisprudence.
The student of any particular system of law soon perceives
that many of the rules of law, and many of the principles upon
which these rules depend and from which they flow, are derived
from more ancient systems, and are expressed in the language
of another age."
These observations are sufficient to enforce upon the attention
of the beginner the importance of a correct conception of words.
SEC. 50. The Utility of Definition.— “The use of words is to
express ideas; ” but how shall ideas be accurately expressed
unless apt words be chosen P
Lest the writer seem to assume the rolé of critic at the outset,
he will, on the subject of the most prevalent fault of writers
and speakers, in the careless use of leading terms, quote the
language of another:
“Of all the fallacies to which the political writers are ad-
dicted, the most common, and at the same time most serious,
is the fallacy of petitio principiº, or of the illegitimate assump-
tion of first principles. The most usual and formidable form
of this fallacy is that of using question-begging terms, which
consists either in including in the formal definition of a term
some improved assumption, as being of the essence of the con-
ception denoted, or—without including such assumption in
the formal definition—by using the term as though such as-
sumption were implied. By this method the propositions from
which our conclusions are to be deduced, instead of being
proved, as they ought to be, are unconsciously imbibed by the
mind with the definition, or with our conception of the term,
and the conclusions thus in effect assumed.”
Upon the same subject Wilson says: “It may, perhaps, be
expected that I should begin with a regular definition of law.
1 See Lyle v. Richards, 9 S. & R.
343–356.
2 Federalist, No. 37. “Men imag-
ine,” says Bacon, “that their reason
governs words, whilst in fact words
react. On the understanding, and
this has rendered philosophy and
the sciences sophistical and inactive.
Hence the great and Solemn disputes
of learned men, often terminating
about words and names, in regard to
which it would be better to proceed
more advisedly in the first instance,
and to bring such disputes to a reg-
ular issue by definition.” Bacon's
Works, vol. III, p. 349,
& Smith's The State, 50, 51.
§ 50.] ANALYSIS OF AMERICAN LAW. • 65
I am not insensible of the use, but at the same time I am not
insensible of the abuse, of definitions. In their very nature
they are not calculated to extend the acquisition of knowledge,
though they may be well fitted to guard the limits of that
knowledge which is already acquired. By definitions, if made
with accuracy—and consummate accuracy ought to be their in-
dispensable characteristic, ambiguities in expression, and dif-
ferent meanings of the same term—the plentiful sources of error
and of fallacy in the reasoning art—may be prevented; Or, if
that cannot be done, may be detected. But, on the other hand,
they may be carried too far, and, unless restrained by the se-
Verest discipline, they may produce much confusion and mis-
chief in the very stations which they are placed to defend.
You have heard much of the celebrated distribution of things
into genera and species. On that distribution, Aristotle under-
took the arduous task of resolving all reasoning into its primary
elements; and he erected, or thought he erected, on a single
axiom, a larger system of abstract truths than were before in-
vented or perfected by any other philosopher. The axiom from
which he set out, and in which the whole terminates, is, that
whatever is predicated of a genus may be predicated of every
species contained under that genus, and of every individual
contained under every such species. On that distribution, like-
wise, the very essence of scientific definition depends; for a
definition, strictly and logically regular, “must express the
genus of the thing defined, and the specific difference by which
that thing is distinguished from every other species belonging
to that genus.”
From this definition of a definition, if I may be pardoned
for the apparent play upon the word, it evidently appears that
nothing can be defined which does not denote a species, be-
cause that only which denotes a species can have a specific
difference."
With these suggestions in mind, the least instructed will be
able to perceive that he must, from the very outset, be on the
alert to detect the present meaning of old words, and to distin-
guish the difference in the meaning between so-called syno-
nyms. He will soon perceive that there are very few real
synonyms in the vocabulary of the lawyer.
5 11 Wilson's Works (last ed.), pp. 50, 51.
66 *ANAIYSIS OF AMERICAN LAW. [$ 51.
Until the habit of the exact use of words is acquired, and the
faculty of differentiation is cultivated, the student need expect
little progress, and the law will seem “the lawless science of
our law, that codeless myriad of precedents, that wilderness of
single instances,” which Lord Tennyson speaks of.
SEC. 51. Utility of Analysis.- One of our great teachers
wrote that “whoever finds the main outlines of the law left
obscure is almost certain to neglect them, and content himself
with learning the practical rules that he can commit to mem-
Ory, without any effort to understand them. He thus increases
greatly the amount of labor before him, if he does not preclude
himself from ever mastering the law as a system. It is worth
any amount of time and trouble . . . to make general
principles plain.”
Dr. Holland says: “The ever-renewed complexity of human
relations calls for an increasing complexity of legal detail, till
a merely empirical knowledge of law becomes impossible. The
evil has been partially remedied by the formation of codes, by
means of which legislators, more or less imbued with legal
principles, have grouped the legal chaos under genera and
species. But an uncodified system of law can be mastered only
by the student whose scientific equipment enables him to cut a
path for himself through the tangled growth of enactment and
precedent, and so to codify for his own purposes. In this as
in other departments of knowledge, the difficulty of the subject
is due less to the multiplicity of its details than to the absence
of general principles under which those details may be grouped.
In other words, while legal science is capable of being intelli-
gently learned, isolated legal facts are capable only of being
committed to memory.”
Sir William Jones, in a work which gives a practical appli-
cation of his theory, says:
“The great system of jurisprudence, like that of the universe,
consists of many subordinate systems, all of which are con-
nected by nice links and beautiful dependencies; and each of
them, as I have fully persuaded myself, is reducible to a few
plain elements, either the wise maxims of national policy and
general convenience, or the positive rules of our forefathers,
| Hammond's Blackstone, Preface, 2 Holland's Jurisprudence, p. 1.
xix.
§ 52.] ANALYSIS OF AMERICAN LAW. • * 67
which are seldom deficient in wisdom or utility. If law be a
science, and really deserve so sublime a name, it must be founded
on principle and claim an exalted rank in the empire of reason;
but if it be merely an unconnected series of decrees and ordi-
nances, its use may remain, though its dignity be lessened, and
he will become the greatest lawyer who has the strongest
habitual or artificial memory.”
Legal analysis as a practical help to the legal scholar pro-
ceeds upon the idea that, wherever reason and logic are allowed
to act, the memory is relieved, and that by an orderly system
the mind may grasp, retain and reproduce on occasion what
would otherwise be impossible to one with an ordinary mem-
Ory. • . -
SEC. 52. Practicability and Difficulty of Analyzing Our Law.
“All jurists agree that we are indebted to the Romans for the
beginning of the scientific treatment of the law,” the develop-
ment of which we have had under examination somewhat in a
former chapter. -
Jurisprudence is, in the Institutes, defined to be “the knowl-
edge of things divine and human, the science of the just and
the unjust.” Since that definition was formulated, the mean-
ing of the word “jurisprudence” has gone through several mu-
tations, until now it has come to signify to us merely the science
of human law, and to include within it everything within the
domain of law.” The remark of Sir William Jones, “That if
law is a science it must be founded on principle,” is obviously
true, or law is simply an art.” Being founded upon principle,
and being also a science, the rules of law must be susceptible
of some logical arrangement, and that arrangement must be
the result of analysis. There never was a time when so much
pains should be taken to arrange and simplify the statement of
the law. A constant recurrence to fundamental principles is
the only way to preserve the integrity of the system or to ob-
tain an enlightened knowledge of it. -
Jack of Attention to Method in Zeaſt-books.--We have many
text-books which are methodically arranged, nevertheless it is
1 Jones on Bailments, p. 144, cited 8 Institutes, lib. 1, tit.1. -
in Heron on Jurisprudence, 57. 4 Heron on Jur., 66; 1 Austin, on
* See also Holland's Jurisprudence, Jur., 176. - -
pp. 2, 3; 1 Stephen’s Com., xi. 5 Jones on Bailments.
68
ANALYSIS OF AMERICAN LAW. [$ 52.
equally true that, as yet, there has never been accomplished a
tolerably fair arrangement of the whole body of American law."
As a consequence a confusion has crept into our text writings;
for instance, one writer takes for the title of his work “Con-
stitutional Law.” We are led at once to inquire what will be
the subjects embraced within that volume and what will be
excluded. Our constitutions relate to governmental relations
and also protect individuals in person and in property; conse-
quently the student may inquire, is constitutional law a dis-
tinct branch of the law, and does the prefix “constitutional"
indicate what subjects will be discussed? If not, constitutional
law is not a significant title-head. We are also aware that the
term, as the title of a body of law, is the outgrowth of Our
written constitution.” Another will take the topic-head of
“Judgments,” and still another of “Estoppel,” and a third
“Jurisdiction,” etc. Now the law of judgments includes one
branch of the law of estoppel, and the law of estoppel con-
cerns a portion of the law of judgments. Judgments and es-
toppel both must relate somewhat to jurisdiction or “due pro-
cess of law,” and due process of law is one of the fundamentals
of constitutional law, which is almost equivalent to “the law
I See Walker's Am. Law, p. 4. The
Institutes of Professor Minor repro-
duce the outline of English law.
There is a reason for this lack of
a thoroughly scientific institutional
work, and the author conceives it to
be this: Until after the Civil War,
no analysis which assigned the rela-
tive positions of the nation and the
state as they are now fixed could
have been acceptable, and while so
great a question remained a vexed
one it was a great impediment to
such a treatment.
2 Dicey, writing of Blackstone's
Commentaries, says: “Of constitu-
tional law, as such, there is not a
word to be found in his Commen-
taries. The matters which appear
to belong to it are dealt with by
hina in the main under the head,
“Rights of Persons.” The book
which is thus entitled treats (inter
alia) of the parliament, of the king
and his title, of master and servant,
of husband and wife, of parent and
child. The arrangement is curious,
and certainly does not bring into
view the true scope or character of
constitutional law. This, however,
is a trifle. The book contains much
real learning about our system of
government. Its true defect is the
hopeless confusion, both of language
and of thought, introduced into the
whole subject of constitutional law
by Blackstone's habit—common to
all the lawyers of his time — of apply-
ing old and inapplicable terms to
new institutions, and especially of
ascribing in words to a modern and
constitutional king the whole, and
perhaps more than the whole, of the
powers actually possessed and exer-
cised by William the Conqueror.”
Dicey, Law of the Constitution, p. 7.
§ 52.]
ANALYSIS OF AMERICAN LAW.
69.
&
of the land.” This mode of treatment depends entirely upon
the discretion and conception of the individual writer, and is
no way controlled by that which is arbitrary and which no dis-
cretion can change, viz., the natural relation and dependence of
legal subjects. x -
Methods of Codes.—It has been said that “no code from the
Code Theodosian to the Code Civile of Canada has yet been
tolerably well arranged. Not one shows any conception of
the mutual relations of the great departments of law. Not
one is governed by the logical principles of dichotomy, which,
though it may not always be visible, yet should underlie and
determine the main features of any system of classification.”
It is not to be understood, however, that Prof. Holland would
contend that Gaius' Justinian’s Institutes and the analyses of
Hale and Blackstone are not controlled by the principles of
classification. r
Analysis Brings Déformities to the Surface.—Sir James
Wilde, in an address before the Social Science Assembly, at
1 Division of classes into sub-classes.
2 Holland, Forms of Law, 1870.
Meaning of Codification.— These
remarks, applied specifically to a
code, apply with equal force to an
orderly presentation of the existing
law, and to such an orderly pres-
entation, with the legislative sanc-
tion added, the term code is applied.
So the New York code commissioners,
David Dudley Field and others, in
their draft of a civil code which
never was enacted, say: “All that
we now know of the law we know
from written records. To make a
code of the known law is therefore
but to make a complete, analytical
and authoritative compilation from
these records. The records of the
common law are in the reports of
the decisions of the tribunals. The
records of the statute law are in the
volumes of the legislative acts. That
these records are susceptible of colla-
tion, analysis and arrangement might
have been assumed beforehand, even
if we had not the proof in our li-
braries, in digest upon digest, more
or less perfect, to which we daily
resort for convenience and instruc-
tion. The more perfect a digest be-
comes the more nearly it approaches
the Code contemplated by the consti-
tution. In other words, a complete
digest of our existing law, common
and statute, dissected and analyzed,
avoiding repetitions and rejecting
Contradictions, moulded into distinct
propositions, and arranged in scien-
tific Order, with proper amendments,
and in this form sanctioned by the
legislature, is the code which the or-
ganic law commanded to be made
for the people of this state. That
this was possible was all but proven
by what had been already done
among ourselves.” This conception
of the code at the same time and by
the same arguments enforces the
practicability and utility of analyt-
icaltreatment of our law. Civil Code,
ch, XIV.
70 ANALYSIS OF AMERICAN LAW. [$ 53.
York, in 1864, said: “The general principles and broad basis
on which our common law reposes, and which tacitly guide
the decisions of our courts, should be brought to the surface,
grouped together in their relations, and contrasted in their dif-
ferences. If such a result could be obtained, the vast area cov-
ered by the law would present a district set out in Order, in
place of a tangled thicket; the true bearing of each abstract
proposition would stand out plainly, because side by side with
others of a similar nature.”
Mr. Parsons says:” “The grand defect of our law is its in-
accessibility; overcome this by giving every barrister the
opportunity of knowing the law, and reform becomes feasible.
Abuses can then be struck at which are now secure, because
no one knows where the aim should be directed; but when the
discordant decisions have been harmonized, when unsound
principles have been expurgated, and when the various depart-
ments of law have been regulated, grouped and subordinated,
reform is fairly begun.” While we are all perfectly agreed
upon these propositions, we are also aware that a vast amount
of painstaking study is involved in the āccomplishment of the
design. - -
SEC. 53. The Method to be Pursued.— It is conceived, also,
that in a scientific arrangement of the law, a rule arbitrarily
belongs in a certain place in the analysis, and in but one place,
and, when completed, a glance at the analysis inevitably leads
the inquirer to the location of the principle. The subject may
be demonstrated thus, taking Blackstone's Analysis as the illus-
tration: He says he made it his first endeavor to mark out a .
plan of the laws of England, so comprehensive as that every
title might be reduced to some or other of its general heads.”
In his Commentaries he fills up that analysis by stating a rule
Of law, and commenting upon its origin, growth and change,
and giving illustrations of its application in decisions. In pur-
suing this plan he states under a particular head the rules ap-
plicable to a subject, without any regard to whether the source
Of the rule was a statute of parliament, a custom of the country,
1 Essays on Legal Topics (Parsons, Pennsylvania, published in 1875, title
1875). “Essays on Legal Topics.”
*Lecture before University of 8 Preface to Analysis, p. 4.
§ 53.] AN AI.YSIS OF AMERICAN LAW. 71
a constitutional document like Magna Carta, or was simply
evidenced by some legal decision' which was itself based upon
reason and supposed policy.”
The Principal Heading for the Outline.—It is obviously nec-
essary that some term be selected which is the basis of the
analysis, so comprehensive that every subordinate subject may
be embraced within this general head; and here it is proper to
remark that in the discussion of a legal subject, as well as any
other, each word used should be selected with a natural appro-
priateness of the term used to convey the desired idea. We
must also bear in mind that there is a mutation in language,
as there is a development of thought and language, as the
vehicle of thought must, to keep pace with the progress of
thought, either invent new words or ascribe a new meaning to
the Old Ones.
New Meaning of Old Words.-Throughout thenomenclature
of the law will be found words which have come down to us
from the Roman or Saxon period, or some intervening time,
but the meaning which now attaches to that word may, and
quite frequently does not, correspond to the meaning which
was given to it originally.” The body of the law which we
are to analyze was framed by men of bold conceptions and upon
new lines. The statement of Madison is quite true, “that had
no important step been taken by the leaders of the Revolution
for which a precedent could not be discovered, no government
established of which an exact model did not present itself, the
people of the United States would, at this moment, have been
numbered among the melancholy victims of misguided coun-
sels; must at best have been laboring under the weight of some
of those forms which have crushed the liberties of the rest of
mankind. Happily for America, happily, we trust, for the whole
human race, they pursued a new and more noble course. They
accomplished a revolution which has no parallel in the annals
1 Black, p. 68; Analysis, ch. 2, Sec. 3. Holt elucidates the law of Bailments.
2 Such, for example, as Coggs v. This is a case which the student
Bernard (1704), Lord Raymond, 909; must read; in which the practicing.
S. C., 1 Sm. L. C. 369; S. C., Great lawyer will find the learning on the
Opinions by Great Judges, 40; S. C., degrees of negligence, which has
Laws L. C. Simp. 194; S. C., Shir. L. C. opened up such a field of law.
41—the great case in which Lord 8 See Holland, Jur., 3, 4,
72 ANALYSIS OF AMERICAN LAW. [$ 54.
of human society. They reared the fabrics of governments
which have no model on the face of the globe.”"
The matter is more plainly put and more directly applied to
the subject in hand in the opinion to which we have before re-
ferred.” “It is hardly possible to make any innovation in our
philosophy concerning the mind and its operations without using
new words and phrases, or giving a different meaning to those
that are received. With equal propriety may this solid re-
mark be applied to the great subject, on the principles of which
the decision of this court is to be founded. The perverted use
of genus and species in logic, and of impressions and ideas in
metaphysics, have never done mischief so extensive or so prac-
tically pernicious as has been done by ‘states’ and ‘sovereigns’
in politics and jurisprudence; * in the politics and jurisprudence
even of those who wished and meant to be free. In the place
Of those expressions I intend not to substitute new ones; but
the expressions themselves I shall certainly use for purposes
different from those for which they have hitherto been fre-
quently used.”*
SEo. 54. Jurisprudence Defined.—We have seen the definition
of jurisprudence as given by the Romans. The word “juris-
prudence” has been in constant use since then, but it has now
a meaning quite different from the idea originally expressed
by the word.” It has been frequently defined, “Jurisprudence
is the science of positive law, the art of legislation, and the
practice of law.”"
“The science of compulsory law with their reasons and
sources combined with their philosophy and history. The sim-
ple knowledge of laws without these lacks the scientific requi-
site of jurisprudence.”" -
“As a science, jurisprudence is analytical; that is to say, it
deals with the various relations which are regulated by legal
rules, rather than with the rules themselves, abstractly speak-
ing.”" -
1 Federalist, No. 14. 5 Holland on Jurisprudence, p. 4.
2 Chisholm v. Georgia, 2 Dall, *419. 6 Heron on Jurisprudence, p. 66;
*Wilson, J., Chisholm. v. Georgia, Austin’s Jurisprudence, vol. 1, p. 176.
2 Dall. *454, - 7 Mackeldy's Roman Law, p. 3.
*See Tennessee v. Davis, 100 U. S. 8 Holland's Jurisprudence, p. 5.
263; 1 Ham. Black. 137–141 ... • -
§ 55.] ANALYSIS OF AMERICAN LAW. 73.
We regard jurisprudence as a science which embraces not
only a view of positive law and government as they exist in any
particular system, but embraces the theories upon which private
rights depend, and upon which governments and nations are
builded. It bears “very intimate relation to the progress of
civilization, and the study of one must embrace the other.” It
is not the same as moral philosophy, although moral philosophy
is one of the basic principles of jurisprudence. It is a broader
term than political science in this: that jurisprudence must
descend to and treat specific rules of private right.
Inasmuch as some definite limits must be set to this limitless
subject, for Our purposes, jurisprudence may be regarded as a
practical rather than a metaphysical science, and as bounded
by the terms the science of law and government, and confined
in application to human laws. It is, however, a historical science,
and consequently not confined to an investigation merely of
what is the law, but what its development has been, and why
and how existing things came to be. Law cannot be treated
intelligently apart from jurisprudence. Jurisprudence is not
a practical science apart from law. Jurisprudence may not
be apparent on the surface of a legal treatise, but should per-
vade and control the arrangement and treatment of legal sub-
jects. - -
There being no authoritative tribunal to fix the meaning of
this word, it must be left to each author to state his concep-
tion of the subject, and in this treatise it is not proposed to
treat jurisprudence abstractly, but to use the science in con-
nection with the system of municipal law which obtains in
the United States. The jurisprudence with which we deal is.
jurisprudence applied, the practical science of law which gives.
order and homogenousness to the corpus juris of the United
States. - -
SEC. 55. The Principle of Legal Analysis.--It is necessary
at the outset to discover the principle lying at the basis of all
legal analysis. That principle, so far as it has been applied to
any feasible attempt at classification or arrangement, is that
the rules of law are to be classified according to the subject-
1 For example, see Gibbon's Decline thetical conditions of the people as:
and Fall, ch. 44, and the four hypo- marking the progress of civilization.
’74. ANALYSIS OF AMERICAN LAW. [$ 56.
matter of the rule of law, or, as we may otherwise put the same
idea, laws are to be arranged according to the objects to which
they relate. This principle is noticed by several men of note."
Upon a matter of such importance as the fundamental princi-
ple upon which to build the whole structure, we cannot take
the Opinion of any one as authority, but must discover the
principle by an investigation for ourselves, which will enable
us the better to appreciate and understand it; and in this in-
stance it will be no unprofitable employment to examine such
analyses as have been made of other systems, for the under-
lying principles of arrangement will be the same. And this is
true, not so much because any of them have had any influence
upon the form of our own institutions as that the influence of
the arrangement of Blackstone's Commentaries upon the minds
of most of those who have entered the profession, by reason of
their very general use among American students, has clung to
them, and may be said to have formed an obstacle in the way
of a perfect understanding of our system; and it may not be
going too far to say the universal use and deference which has
been paid to the Commentaries upon the Law of England has
formed an obstacle in the way of an arrangement of our sys-
tem, better adapted to the real form of American institutions;
for no matter how well it was adapted in its day, and to the
laws of England as maintained by the Court party at St. James
in 1766, it was never fitted to inculcate the principles of Ameri-
can law, or of the English constitution as understood by our an-
Cestors. -
SEC. 56. Classification of the Roman Law.— Gaius, the most
celebrated jurist of Rome, said: “That all laws relate to per-
sons,” to things, or to actions.” No great use was made of these
principles in the Roman code or pandects, and it is apparent to
any one who gives that body of laws close examination that
those books have not been arranged in conformity with these
principles.” While the divisions pointed out by Gaius are ob-
served, the external arrangement of the law of Rome was
never made to conform to this internal arrangement.”
1 Bowyer, Com. on Civil Law, ch. 8; *1 Stephen's Com., p. xi.
Mackeldy's Roman Law, p. 117, Sec. 4 Sanders' Justinian, Introduction,
124; Austin's Jurisprudence, 761. p. 24.
* Persona, i. e., condition or status.
§§ 57, 58.] ANALYSIS OF AMERICAN LAW. 75
SEC. 57. Method of the Institutes.— The greatest application
of the principles and the nearest approach to system is found
in the arrangement of the Institutes, which was a work de-
signed for the use of students, and meant to give an outline or
introduction to the laws of Rome as found in the Code and
the Digest. Judge Tucker truly remarked that in arbitrary
governments questions concerning the constitution rarely occur,
and are still more rarely discussed, and hence in such govern-
ments the study of the law merely as a profession does not
seem necessarily to require the study of the constitution; the
former being limited to such controversies between individuals
as do not involve in them any question of the authority of the
government itself, and the latter being supposed to be a theme
too exalted for the comprehension of the private individual,
and as such discouraged and neglected.” This is undoubtedly
the reasos why the arrangement and discussion of the Insti-
tutes does not embrace the relation of magistrate and people.
The following, taken from Spence’s “Equitable Jurisdiction,”
shows sufficiently the arrangement of the Institutes: “The
laws of the Romans may be classed under five general divis-
ions: First. Those which concern the distinctions of persons
and the relations which existed between individuals. Second.
Those which related to property or things. Third. Those which
related to the rights of individuals in respect to their transac-
tions with others, and to the claims arising from the conduct
of individuals one to another, or the laws relating to obliga-
tions. Fourth. Those which related to the enforcing by legal
means the rights and claims of individuals, or the laws which
concerned the machinery of actions. Fifth. The laws relating
to public offenses.” -
SEC. 58. Blackstone's Disposition of these Subjects.- A com
parison of this analysis of Roman law with Blackstone's analy-
sis of English law shows that Blackstone has reproduced, in
his Commentaries, all excepting the third division. The first
division, under “Rights of Persons” (book 1); the second divis-
ion, under “Rights of Things” (book 2); the fourth division,
1 The Institutes of Gaius are re- are universally cited as the Insti-
ferred to as such; those of Justinian tutes.
* Preface to Tucker's Black., xvi.
76. ANALYSIS OF AMERICAN LAW. [$$ 59, 60.
“Of Actions and Defenses of Actions” (book 3), under the head
of “Private Wrongs;” and the fifth division, in book 4, under
the title “Of Public Wrongs.” What, then, becomes of the third
head, namely, “Obligations?” f
Obligations were those which related to the rights of indi-
viduals in regard to their transactions with each other, and
the claims arising from the conduct of individuals one to an-
other.
In the Roman law these obligations arose by reason of, first,
contracts, express or implied, which Spence has designated by
the words “transactions with others;” or second, from torts
or Wrongs, as understood in English or American jurisprudence,
expressed by Spence as arising from conduct of individuals one
to another, which the Roman called delicts.
All that part of obligations arising from contracts is logic-
ally treated by Blackstone under “The Rights of Things,” as
all such contracts affected property, and conduct imposing an
obligation was some wrongful act of One person against an-
other, amounting to a tort.
SEC. 59. Universality of the Principle of Analysis.-These
principles of Gaius, and their application in the Institutes, lie
at the basis of every systematic analysis of modern law, and it is
obvious that, if the principles are sound, they are applicable
alike to all systems. Blackstone says, in the introduction to
his analysis of the laws of England: “The most early and, in-
deed, most useful of those who have labored in reducing our
laws are Glanville, Britton, Bracton and Fleta.” (Bracton's
system was to book 3, tract 1, substantive and fundamental
rules; the balance, legal procedure, and was professedly fol-
lowing the Roman law.) Fitzherbert and Brooks, and the
subsequent authors of abridgments, have chosen a method the
least adapted of any to convey the rudiments of a science;
namely, that of the alphabet. Dr. Cowl follows the Institutes
of Justinian. He then says: “Of all the schemes hitherto
made public for digesting the laws of England, the most nat-
ural and scientific of any, as well as the most comprehensive,
appeared to be that of Sir Matthew Hale in his posthumous
analysis of the law.”
SEC. 60. Critical Examination of the Principle.— It is im-
portant to ascertain clearly the principles lying at the basis of
§ 60.] ANALYSIS OF AMERICAN LAW. 77
each analysis, and also to see how far they are applicable to
Our law.
We have asserted that the principle lying at the basis of the
various analyses is that the laws are to be classified according
to the objects of the rules. Austin, speaking of Gaius, says:
“That he divided jus, or law, into jus gentium, and jus civile,
and, having shown the various sources of the assumption of
law, or jus, proceeds to divide that same subject according to
the objects or subjects with which it is conversant.”
Dlackstone says in the opening words of his Commentaries:*
“The objects of the laws of England are so very numerous and
extensive that, in order to consider them with any tolerable
ease and perspicuity, it will be necessary to distribute them
methodically under proper and distinct heads.” In his fourth
paragraph he says: “The objects of the laws of England falling
into this four-fold division, the present Commentaries will, there-
fore, consist of the four following parts.” He begins the out-
line thus: The objects of the laws of England are: 1. Rights
of persons. 2. Rights of things. 3. Private wrongs. 4. Public
wrongs.”
What the law concerns, determines its place in Hale's Analy-
sis. Thus, he says: “The laws of this kingdom do respect either,
etc.” “The civil part of the law concerns civil rights or inter-
eStS.” 4 re
In the United States the jurisdiction is divided between the
national and state governments upon this principle. ,
Mr. Justice Wilson, speaking in the convention called by the
state of Pennsylvania to consider the question of ratifying or
rejecting the proposed constitution, said: “To be left without
guide or precedent was not the only difficulty in which the
convention was involved, by proposing to their constituents a
plan of a confederate republic. They found themselves em-
barrassed with another of peculiar delicacy and importance;
I mean that of drawing a proper line between the national gov-
ernment and the governments of the several states. It was
easy to discover a proper and satisfactory principle on the sub-
ject. Whatever object of government is confined in its opera-
1 Austin's Jurisprudence, 761. *See outline in any edition of the
* 1 Blk, Com. *121. Commentaries.
9 Hale's Analysis, sec. 1.
78 ANALYSIS OF AMERICAN LAW. [š 60.
tion and effects within the bounds of a particular state should
be considered as belonging to the government of that state;
whatever object of government extends in its operation or
effects beyond the bounds of a particular state should be con-
sidered as belonging to the government of the United States.
But though this principle be sound and satisfactory, its appli-
cation to particular cases would be accompanied with much
difficulty; because, in its application, room must be allowed for
great discretionary latitude of construction of the principle.”
A little reflection will show that it is the subject-matter of
the rule that determines its location in any particular chap-
ter in Blackstone's Commentaries, and not whether the rule
is found in the statutes of the kingdom or in Magna Carta,
the Customs of Merchants as evidenced by the reported decis-
ions, the Bill of Rights, etc. These simply determine by virtue
of what the alleged rule of conduct has the authority of law,
while the object affected by the rule, i. e., whether it relates to
a man’s right to locomotion, his right to a particular chattel or
real property, etc., is the controlling element in arrangement.
The plan of Blackstone's Analysis, which is the outline of his
Commentaries, published some years afterwards, is the outline
upon which many subsequent treatises have based their arrange.
ment. We will speak of Blackstone's arrangement sufficiently
to explain such departure from it as the difference between the
American and English systems of law compels. It is intended
in this analysis to observe the arrangement of Blackstone, Hale
and Gaius, so far as the same are applicable to American juris-
prudence, because they have all been attempts to proceed in
accordance with the principle of analysis mentioned. The fa-
miliarity of the profession with the method of Blackstone ren-
ders reference and comparison of still more utility. We shall,
however, be compelled to depart from the form or plan of
arrangement of Blackstone where a slavish adherence to the
language used by him will not convey the desired idea, or
when, as will frequently be found to be the case, it will convey
an erroneous one.
11 Wilson's Works, p. 533.
CEIAPTER III.
PRIMARY CLASSIFICATION OF SUBJECTS.
“All the matters of the Civil Law have among themselves a simple
and natural order which forms them into one body, in which it is easy
to see them all, and to perceive with one view in what part every one
hath its rank.” Domat, Civ. L., ch. xiv, p. 96. -
SEC. 61. Nature and Uses of Classification.—In the process
of separating the corpus juris of the United States into different
subjects, each of which may in turn be examined minutely, we
necessarily avail ourselves of what is called legal analysis.
Jegal Analysis Eºplained.— Analysis, applied to law and
used in reference to a tangible result attained, has a meaning
peculiar to itself; e.g., when we speak of Hale's analysis or
Blackstone's analysis, the phrase calls to mind the synoptical
outline of English law, rather than the processes by which these
results have been attained.
Analysis, used abstractly or applied to chemistry, naturally
suggests the process of separation, or the resolution of some
substance into its elements.
Legal analysis, however, involves two processes.
Jºrsł.
Analysis in its narrower sense, i. e., the resolution of the body
of the law into its separate parts according to the principles of
didotomy," i. e., separation according to species and genera.”
1 See Webst. Dic., titles Method,
Analysis, Synthesis, Synopsis. Thisis
the plan of Lord Comyn's celebrated
Digest of English Law, which is to-day
unexcelled by any subsequent work.
It may be remarked that the arrange-
ment of a digest, to be perfectly
logical, should be identical with the
arrangement of a commentary. That
this is practicable is clear, if one but
remembers that every judicial decis-
ion involving questions of law is but
the application of some rule which
must find a place in a commentary.
The editor of Comyn's Digest says:
“The general plan of this Digest is
that the author lays principles or
positions of law, and illustrates them
by instances, which he supports by
authorities; and these are branched
out and divided into consequential
positions, or points of doctrine, illus-
trated and supported in the same
manner. By this means, each head
or title exhibits a progressive argu-
ment upon the subject, and one para-
graph (andinlike manner one division
or subdivision, etc.) follows another
in natural and successive order, till
the subject is exhausted.”
2 “You have heard much of the
celebrated distribution of things into
SO PRIMARY CLASSIFICATION OF SUBJECTS. [$ 62.
The second process may be termed synthetical, and consists in
arranging the matter thus differentiated by the first process in
such a manner that each subhead will be again divided, and
so on until all of the subjects and the mutual relation and
dependence of each appears upon the surface."
SEC. 62. Classification of Legal Treatises.— The result of
such a process is the production of a synoptical outline, and in
the production of legal treatises the extent to which comment,
explanation and illustration is indulged in by the writer is the
test to determine whether the book is an analysis, an insti-
tute, or a commentary. As an example of books of the char-
acter above mentioned, of the first class are the outlines of
Pſale and Blackstone, in which the writers indulge in no com-
ment at all, or but Occasionally, a mere reference; as, for ex-
ample, Lord Hale speaks of the classes of Men, sub-class Aliens,
and adds: “Here comes in the learning of (concerning) aliens,
as naturalization, denization, etc.””
As examples of institutes
genera and species. On that distri-
bution Aristotle undertook the ar-
duous task of resolving all reasoning
into its primary elements; and he
erected, or thought he erected, on a
single axiom, a larger system of ab-
stract truths than were before in-
vented or perfected by any other
philosopher. The axiom from which
he sets out, and in which the whole
terminates, is that whatever is predi-
cated of a genus may be predicated
of every species contained under that
genus, and of every individual con-
tained under every such species. On
that distribution, likewise, the very
essence of scientific definition de-
pends; for a definition, strictly and
logically regular, ‘must express the
genus of the thing defined, and the
specific difference by which that
thing is distinguished from every
other species belonging to that
genus.’” 1 Wilson's Works, 51.
1 This work must be done either
mentally or visibly by an actual out-
line. Before any subject can be
thoroughly mastered the mind must
See the outline. Henry St. George
Tucker, in his Commentaries, says:
“It is with the law as with every-
thing else that is to be learned. It
is sooner learned, and better learned,
by being studied systematically. The
rudis indigestaque moles must be re-
duced to order by the student him-
self, or by somebody for him. That
every person who comes to acquire
a knowledge of this complicated sub-
ject should have to arrange for him-
self would exhibit a state of infancy
in the science unworthy of our times.
It would be as if the innumerable
papers in a clerk’s office were thrown
in a common heap without order,
and each suitor was compelled to
hunt in the confused mass for what-
ever he might want, to arrange them
for his own use, and then throw
them back again into the same un-
distinguished chaos, to try the in-
genuity and patience of the next
adventurer. These evils were early
discovered, without doubt, but they
have been only recently remedied to
any considerable extent.” See Mi-
nor’s Institutes, Preface.
2 Hale's Analysis, p. 3.
§ 63. PRIMARY OLASSIFICATION OF SUBJECTS. 81
we have Gaius, Justinian, Wood's Institutes of English Law,
Minor's Institutes, and that of Bouvier, unless it be said that
the last two indulge in more comment than is allowable in a
mere institute, and thereby become commentaries.
The best known examples of commentaries are Blackstone's
and Kent's Commentaries, and the writings of Judge Story.
Every extended treatise which now passes under the title of
“text-books” is in reality a commentary on the particular sub-
ject, unless its order is so deficient as to make it partake more
of the character of a digest.
“Institutes,” says Lord Bacon, “ought to have two proper-
ties, the one a perspicuous and clear Order of method, and
the other a universal latitude or comprehension, that the stu-
dents may have a little pre-notion of everything, like a model
towards a great building.”
A commentary must of necessity be as orderly in its treat-
ment as either an analysis or an institute, and should the title
a commentary on English law or American law be taken, then
every subject should be noticed. The order should not be
changed because of the bulk of the work. For example, Kent's
Commentaries are said by Professor Dwight to be imperfect
as commentaries on American law because they do not include
within the treatment the subject of torts, criminal law and
procedure.”
SEC. 63. Legal Analysis in American Treatises.—Authors,
especially in recent years, have not been noted for their lucid-
ity of arrangement, although the legal profession has exhibited
a high degree and skill in the first branch of legal analysis.
This is undoubtedly the natural result of regarding constitu-
tional law, which is properly a part of the law of persons, as a
distinct field of law. Kent's Commentaries is a striking illus-
tration of this influence.”
1 Works, vol. II, p. 232.
31 Green Bag, 143. Professor
Dwight did not mean that the treat-
ment was imperfect, but that the
scope was narrower than the title.
To the author, the arrangement of
Rent's Commentaries is its principal
defect. The classification of the mat-
ter contained in Part Two, by itself,
under the title, “The Constitutional
Jurisprudence of the United States,”
leads one to view the subject as a
body of law isolated from the matter
of the next part, which is “Munici-
pal Law;” whereas, the whole of the
book, as well as Part One, is within
the title “Municipal Law.”
8 I do not mean to say that this has
6
82 PRIMARY CLASSIFICATION OF SUBJECTS. [$$ 64, 65.
SEC. 64. Subjects Are How Classified.—It is obvious that the
arrangement and classification of a system of law depend upon
the nature and peculiarities of the system to be treated, and
that it is illogical to undertake to arrange one system of law
in accordance with the synopsis designed to present another
system, unless the two systems are entirely similar in structure,
and the synopsis which presents itself is strictly correct in all
its parts, and especially in its leading divisions. Most authors
who have attempted to treat the whole body of American law
have undertaken to cast it in the mould of the outline of Eng-
lish law found in Blackstone's Commentaries, without taking
the pains to investigate the soundness of the reasons for his
method, and without questioning whether the two systems
were identical in outline. Not one American writer has stated
the principle of arrangement which dominated his classifica-
tion; not one has arranged his material in accordance with the
logical principles which were used by Hale, and which Black-
stone professed to follow in his Commentaries.
SEC. 65. Importance of Primary Classification.—The im-
portance of a logical and correct primary classification cannot
be overestimated."
had a bad effect upon the character
of the text produced. It is an ac-
knowledged fact that American text
writers are the equals of any in the
field of law, but the opinion is ven-
tured that this has been the principal
reason why no complete Outline of
our law, distinctively American, has
appeared. The difficulty is to look
through the formal mode of expres-
sion and artificial legislative classifi-
cation and formulate a System in
compliance with the natural order
of the subjects. Now the law of
England used to be classed as com-
mon law or lea: non scripta, and stat-
ute or written laws, and this out-
ward form was a hindrance to its
treatment. Lord Hale perceived that
the source of the law had nothing to
do with the method of arrangement,
as he says in the preface to the analy-
sis: “And although the laws of Eng-
land are generally distributed into
the common law and statute law, I
shall not distribute my analysis ac-
cording to this method, but shalltake
in and include them both together, as
Constituting one common bulk or
matter of the laws of England.” He
applied the true touchstone. Our
jurisprudence presents an additional
obstacle, the one mentioned, our sys-
tem of written constitutions. We .
have the common law, the constitu-
tions, and judicial decisions. But
these are not the sources of the law,
although often erroneously so called.
They are the media of communica-
tion — the means of expression; but
there is only one source—the people.
There being but one source, there is
no room for classifying according to
the source, in such a way as to be
the basis of a treatise on the law.
1 “By some philosophers, definition
and division are considered as the
two great nerves of science. But
§ 66.] PRIMARY CLASSIFICATION OF SUBJECTS. S3
SEC. 66. The Reason for and Fallacy of Blackstone's Pri-
mary Classification.— In seeking for the most appropriate clas-
sification, we must of necessity examine those methods which
have been heretofore used, and ascertain, if we can, the rea-
Sons which underlie them, test the accuracy of their applica-
tion, and determine their applicability to our system of laws.
Blackstone's first great division of the law of England is into
Rights and Wrongs. Municipal law he defines to be a rule of
civil conduct, prescribed by the Supreme power in a state, com-
manding what is right and prohibiting what is wrong."
In book 1, on page 122, he says: “Now, as (i. e., because)
municipal law is a rule of civil conduct commanding what is
right and prohibiting what is wrong, it follows that the prin-
cipal and primary objects of law are rights and wrongs.” He
then indicates that “rights” are divided into rights of persons
and rights of things, and “wrongs” into private wrongs and
public wrongs, and then continues: “The objects of the law of
England falling into this fourfold division, the present com-
mentaries will therefore consist of the four following parts,
viz.,” etc. -
In book 3, page 1, after reciting his definition, he says:
“From hence, therefore, it follows that the primary objects of
law are the establishment of rights and the prohibition of
wrongs, and this occasioned the distribution of these collec-
tions into two general heads.” te -
By this recital two things are made perfectly obvious. Fºrst,
that the principle of analysis recognized by Blackstone is that
rules are to be classified according to the objects to which the
rules relate; second, that he determined what these objects
were by what he supposed to be a definition of municipal law.
Blackstone's Daftnätion of Municipal Zaw Żeamined.—Black-
stone's definition of municipal law has received criticism of
great weight on each of its essential points,” viz.: Fºrst. It is
unless they are marked by the purest more especially of the first principle,
precision, the fullest comprehension, will spread confusion, distraction,
and the most chastised justness of and contradictions over the remotest
thought, they will perplex, instead parts of the most extended System.”
of unfolding—they will darken, in- 1 Wilson's Works, 52.
stead of illustrating, what is meant 11 Blk. Com. 44.
to be divided or defined. A defect 21 Cooley's Blackstone (2d and 3d
or inaccuracy, much more an impro- eds.), 44, note; 1 Sharswood's Black-
priety, in a definition or division, stone, 44, note, 122, note; Heron. On
84. PRIMARY CLASSIFICATION OF SUBJECTS. -
[$ 66.
denied that it is a rule prescribed, as distinguished from con-
sented to, or agreed upon. Second. It is denied that it is
prescribed by the supreme power in a state.” Third. It is de-
nied that it necessarily commands what is right and prohibits
what is wrong. The definition lying as it does at the thresh-
old, and constituting in fact the basis, of his primary division
of the body of law into the two general heads just mentioned,
the question as to whether the definition is correct, and the di-
vision follows, is of vital importance. But at this point of our
inquiry we are only interested in that last clause of the defini-
tion, viz., whether a law is a rule commanding “what is right
and prohibiting what is wrong,” and whether, as a consequence
thereof, the body of the law must be divided into the two gen-
eral heads, Rights and Wrongs. The other branch, locating the
supreme authority in the legislative branch, will be discussed
when we explain the relation of Magistrate and People.
The point of criticism applied to this branch of the definition
is, that it is superfluous and conveys an erroneous idea of mu-
nicipal law. Many of the criticisms will be found in notes to
pages 44 and 122 of volume 1 of different editions of the Com-
mentaries, cited above.” Blackstone's handling of the question
is in nowise clear. He seems to connect the moral obligation
of natural law with the law of nations,” binding upon nations,
and being their only bond, for the reason that there is no
superior. : -
In accordance with his idea that, to have a law binding, there
must be a superior in the law of nations, he finds a superior to
nations in the Deity, or the law of God; but he immediately
Jurisprudence, 65; Hoffman’s Legal
Outline, 268; 1 Bouvier’s Institute,
p. 6; Walker's American Law, p. 47;
Austin’s Jurisprudence, vol. 1, p. 220.
1 1 Cooley, Blk. (3d ed.), *45, note;
T)artmouth College Case, 4. Wheat.
518; Binghamton Bridge, 3 Wall. 57;
1 Wilson's Works, 75, 159 et seq.
21 Wilson's Works, 55, 65; 1 Ham-
mond’s Blk. 112. -
3 I know of but two modern writers
who approve of this definition. The
first is Prof. Bliss, in his work on
Sovereignty, and the other is Prof.
Hammond, in the notes to his edition
of Blackstone; but the opinion of Mr.
Bliss is based upon the proposition
that an act of the legislature which
is contrary to natural right is in-
valid, he quoting from Blackstone's
Commentaries, pp. 39, 44. In this
position. Mr. Bliss is not supported by
any one, and the authorities he cites
go to another proposition; neither
does he address himself to the ques-
tion as being One of classification.
41 Blk. Com. 43.
§ 67.]
FRIMARY CIASSIFICATION OF SUBJECTS. S5
contrasts with this, municipal law or the rule of civil conduct;"
for he says: “Municipal law is a rule of civil conduct. This
distinguishes municipal law from the natural or revealed.
The former (natural) is a rule of moral conduct, and the latter
(revealed) a rule of faith; . . but municipal or civil law
regards him (man) as a citizen and bound to other duties than
those of mere nature or religion.” Then follows an inquiry
into the nature of civil government, the object of which is to
locate a supreme power, which, to be consistent with his defini-
tion, must be found somewhere. “There is,” he says, “and
must be in all of them (states), a supreme, irresistible, absolute
and uncontrollable authority in which the jura summi imperiº
or right of sovereignty resides.” This he finds to be in Eng-
land the legislative body, which is the parliament." In the
TInited States the idea is entirely different, and will be discussed
with Magistrate and People.
SEC. 67. The Right-and-Wrong Clause Condemned.— After
establishing and locating in this manner the Supreme authority,
he proceeds to the latter clause of the definition, commanding
what is right and prohibiting what is wrong,” and proceeds:
“Now, in order to do this completely, it is, first of all, necessary
that the boundaries of right and wrong be established and as-
certained by law.” What law does he mean? Obviously the
civil law, of which he is speaking, for he proceeds: It remains
to consider in what manner the law is said to ascertain the
boundaries of right and wrong. For this purpose laws are
said to consist of two parts, declaratory and directory.” “The
1 Book I, p. 44. places, notwithstanding, bursts out,
2 Id., p. 45.
3Id., p. 49. Bentham says: “The
vehemence of this passage is remark-
able. He ransacks the language; he
piles up, one upon another, four of
the most tremendous epithets he can
find; he heaps Ossa, upon Pelion;
and, as if the English tongue did
not furnish expressions strong or
imposing enough, he tops the whole
with a piece of formidable Latinity.
From all this agitation it is plain, I
think, there is something which he
has very much at heart; which he
wishes, but fears, perhaps, to bring
out undisguised; which in several
involuntarily, as it were, before he is
well ready for it; and which, a cer-
tain discretion, getting at last the
upper hand of propensity, forces, as
we have seen, to dribble away in a
string of obscure Sophisms. Thus,
oddly enough, it happens that that
passage of them all which, if I mis-
take not, is the only one that was
meant to be dedicated expressly to
the subject, is the least explicit on it.”
Fragment on Gov., ch. 4, Sec. 13.
4 Page 49.
5 Page 51.
6 Page 53.
86 PRIMARY CLASSIFICATION OF SUBJECTs. [$ 67.
first,” he says, “depends not so much upon the law of revela-
tion or of nature as upon the will of the legislator.” But he
at once modifies the view by the statement that the “legislature
must not violate rights established by natural law.” “The
directory part of the law,” he says, “stands upon the same foot-
ing, being implied from the declaratory.” The question, then,
whether this clause of the definition is surplusage or conveys
an erroneous idea of a law, resolves itself into this: whether or
not legislative acts must conform to the moral or natural
standard of right and wrong as taught by the law of nature or
religion? For Blackstone says: “No human laws are of any
validity if contrary to this (law of nature), and such of them as
are valid derive all their force, mediately or immediately, from
this origin.” The United States supreme court has declared
this idea impracticable as a rule of action to be administered in
courts.” .
Judge Cooley, in his notes to this proposition in the Commen-
taries, with his usual directness and practical good sense, the
result of lifelong contact with practical jurisprudence, says:
“Under no circumstances do mankind differ more widely than
when they undertake to apply their fallible judgment to the
determination of what the law of God commands or of what it
forbids. . . . Now, when it is said that no human laws
which are opposed to the law of God can be of any validity,
we may accept the declaration as theoretically true, but in
government it is fallacy.”
Christian says that the “latter branch, commanding what is
right and prohibiting what is wrong, must be either superflu-
ous or convey a defective idea of municipal law; for if right
and wrong refer to the municipal law, then whatever it com-
mands is right and whatever it prohibits is wrong, and the
clause would be insignificant tautology; but ifright and wrong
be referred to the law of nature, then the definition will become
deficient or erroneous.”* And Judge Sharswood says: “But
mere law (the command of a superior) cannot per se annex the
moral qualities of right or wrong to the action, in itself con-
sidered, commanded or prohibited. Right and wrong are ab-
1 Book I, p. 55. - Peel Splint Coal Co. v. West Virginia,
2 Allen v. Ferguson, 18 Wall. 1. 36 W. Va. 802; 17 L. R. A. 387.
& 1 Cooley's Blk. (3d ed.) 50, note; 41 Sharswood’s Blk, 44, note.
§ 67.] PRIMARY CLASSIFICATION OF SUBJECTs. 87
stract moral qualities, resulting necessarily from the relations of
persons or things. No law can make that right which is itself
wrong. The definition of Cicero certainly avoids this objec-
tionable feature of Blackstone's language.”"
In his notes to page 122 of book 1 of the Commentaries (3d
edition), Judge Cooley has made a complete and exhaustive
examination of the idea of natural rights, moral rights, and legal
*ights. In respect to natural rights, which Judge Blackstone
treats as having their origin in the natural state of society, he
says: “By this it is implied that there is a state of nature ante-
dating political Organizations, and therefore antedating law, of
which every individual has rights given him by the law of nat-
ure, which every other individual is under obligation to respect
and observe. Now of this it must be said, first, that the con-
ception of such a state of nature is mere fancy; that it never
did and never can exist; for the individual is never found out-
side of society, or of the reach of human law, except, perhaps,
in wholly exceptional and anomalous cases, and therefore the
supposition of such a state must be useless, even as a matter of
theory. It seems clear that any theory, in Order to possess any
possible value, must recognize whatever condition of things
is universal and inevitable.”
Judge Cooley quotes approvingly” from Mr. Bentham: “The
great multitude of the people are continually talking of the
law of nature, and then they go on giving you their senti-
ments as to what is right and what is wrong, and these senti-
ments you are to understand are so many chapters and sections
of the law of nature. Instead of the law of nature, you have
sometimes the law of reason, right reason, natural justice, nat-
ural equity, good order; and any of them will do equally as
Well.”
The great trouble with the theory is that it is a mere theory,
and is not based on any fact. It is defining what law is by
the use of a philosophical theory of what it ought to be. There
never was, and never could be, any natural Society not governed
by human laws.” The fallacy seems more plain if the doctrine
is traced to its source. The Institutes define jurisprudence as
11 Sharswood’s Blk, 44, note. 32 Wilson's Works, p. 300; 1 Shars-
21 Cooley's Blk. (3d ed.), p. 39, note: wood's Blk, p. 48, n. 11. .
88 PRIMARY CLASSIFICATION OF SUBJECTS. [š 68.
the knowledge of things divine and human, the science of the
just and the unjust."
SEC. 68. The Definition mo Basis for Classification.—Sanders,
in his notes, says: “Jurisprudentia is the knowledge of what
is jus; and jus, according to the theory of the law of nature,
laid down what is commanded by right reason, this right rea-
Son being common to nature, Or, as the Romans more often
said, to the Gods and to man. On this ground, and also be-
cause public law has to deal with religious worship, the knowl-
edge of divine things was therefore necessary, as well as the
knowledge of human things, to say what were the elements
of jus. Both this and the preceding definition, taken at ran-
dom out of the Writings of Ulpian, are unintelligible unless
taken in connection with a philosophical theory from which
they are here dissevered, and are quite out of place at the be-
ginning of an elementary treatise on law.”* Blackstone did
not regard this, and based his whole theory of law and classi-
fication upon this obsolete definition.
The Christian religion having been, until quite recently at
least, held to be the basis of the law of England,” and so rigidly
so at the time of Blackstone that it was an indictable blasphe-
mous libel to question, no matter how moderately, the divinity
of Christ or the truth of the Christian religion, constitutes a jus-
tification for his position stronger than many now suppose who
look at matters from the present standpoint. A recent decis-
ion in England has materially changed the light in which the
matter is regarded, and England now enjoys the liberty of free
religious discussion, providing the party questioning the truth
of the prevailing Christian religion maintains a perfect control
of his temper and couches his argument in dignified and well-
chosen language.* Americans can appreciate the fourth so-
called absolute right.
The Institutes also define the law of nature. The law of
nature is that law which nature teaches to all animals; for this
law does not apply exclusively to the human race, but applies.
to all animals, whether of the air, the earth or the water.”
1 Inst., 1–1. 4 Reg. v. Ramsay & Foot, 48 L. T.
2 Sanders' Justinian, lib. 1, tit.1, and (N.S.) 733, a case involving the Brad-
note. See also Id., Introduction, Sec. 34. laugh episode.
81 Cooley's Blk., p. 59. See Cooley's "Inst, 1–2.
Const. Lim., p. 572.
§ 68.] PRIMARY CLASSIFICATION OF SUBJECTs. 89
The trouble with this appendage (commanding what is right,
etc.) and its basis is that by it you can prove anything. It is the
basis of the divine right of kings, sanctioned by Aristotle, Jus-
tinian, Bacon, Queen Elizabeth and King James, and as Prof.
Hammond himself says, “Dlackstone, in falling back on to the
Original-compact idea, without apparently perceiving the incon-
sistency between the doctrine and his definition, an incon-
sistency of which his first American critic, Wilson, has made
effective use, showing that this definition ranked him, in spite
of himself, with the supporters of divine right and absolute
power.””
The Institutes lay down the doctrine that the law of nature
Was the basis of the law of nations, and yet holds that slavery
Was contrary to the law of nature, but was an incident of war,
which, of course, was regulated by the law of nations and hu-
manity. The Roman civil law recognized regulated slavery.
The very churches of America have been divided upon the sub-
ject.
Blackstone says the only true and natural foundations of so-
ciety are the wants and fears of individuals; and, if it were
not too cynical, one might almost be justified, in the light of
history, in saying that man has had no other criterion for de-
termining the law of nature than his own selfishness. The doc-
trine of the binding force of natural law as a legal doctrine is
long since exploded; not but what there are some things in the
law of nature recognized and enforced by all municipal codes,
11 Hammond’s Blk. 1.12; Wil-
son’s Works, vol. 1, pp. 54–75. Men
Of the same race, religion, ancestry,
language and law could justify the
institution of slavery, and with the
same law illustrate that the air of
England could not be breathed by a
slave. Best, Judge, in the celebrated
case of Forbes v. Cochran, in 1824, goes
somewhat into the history of the re-
lation of the slave traffic with Eng-
land, and asserts that during the
reign of Queen Elizabeth she issued
patents to encourage the trade, and
these were followed up by acts of
parliament expressly recognizing it.
Acts were also passed during the
reigns of William III and George II.
Lord Mansfield refers to the opinion
of Sir Phillip Yorke and Lord Chief
Justice Talbot, whereby they oblige
themselves to British planters for
all the legal consequences of slaves
going over to England. He himself,
with the same magic weapon, the
law of nature or God’s law, wiped
out the institution in England once
for all. Somerset's Case, State Trials,
201; Great Opinions by Great Judges,
112. The English cases discussing the
subject of slavery in the English law
are cited in Forbes v. Cochran, 2 B.
& C. 448; 9 E. C. L. 138.
90 PRIMARY CLASSIFICATION OF SUBJECTS. [š 68.
but these rules address themselves to the law-makers, while
civil laws address the individual.
A False Antithesis the Ground for Classification, Continued.
Enough has been said to indicate the foundation upon which
Blackstone rests this last clause of his definition, and somewhat
of the force of the criticisms against it. But, as the basis of
classification, the definition is subjected to still more serious
criticism. Close attention and observation to Blackstone's text
will suggest to the reader that in the definition Blackstone
uses the words “right” and “wrong” as adjectives, but in the
classification he uses them as nouns. This manner of using
the words is much like “keeping the word of promise to the
ear and breaking it to the hope.” The transition from the ad-
jective use of the words to their use as nouns is so bold and
sudden that it requires an effort of the mind to detect that the
same words in the two situations have entirely different mean-
ings. In the definition, the words “right” and “wrong” are
used to express the idea of abstract moral qualities as applied
to certain acts. -
We might substitute that a law commands what is just, good,
upright, and in conformity with “natural justice,” and prohib-
its what is unjust, evil, bad, iniquitous, or contrary to “natural
justice;” in which case it would, according to Blackstone, nat-
urally follow that the law was divided into just and unjust,
good or bad, etc. And Chitty, Christian, Austin, Coleridge, and
Judges Wilson and Cooley' all agree that this qualifying phrase
is surplusage, and not true as a definition of municipal law.
Coleridge, Judge, thinks Blackstone misquotes Cicero.” It is
apparent that, if we reject this phrase in the definition, or sub-
stitute other words for rights and wrongs, the primary division
of the law, if depending upon a definition at all, falls out of
Blackstone’s analysis, because he says the division follows the
definition. He says: “Because the law is a rule commanding
what is right and prohibiting what is wrong, it follows that
the primary and principal objects of the law are “rights and
wrongs.” But I cannot assent that the definition of a law
necessarily discloses the division of the whole body of law.
Much less is there any association of ideas between the words,
1 Notes to different editions of 22 Sharswood's Blk. 1, note.
Blackstone, pp. 39, 44, 122.
§ 68.] { PRIMARY CLASSIFICATION OF SUBJECTS. 91
aithough of the same spelling and sound; “right” and “wrong,”
when used adjectively, denoting an affirmative or negative qual-
ity of morality and synonymous with “good” and “evil,” and the
same Words, when used as nouns, indicating something a man is
entitled to. Rights are, by Blackstone, nowhere defined, nor
their nature investigated, although they are the principal and
primary objects of the law. “Rights” and “wrongs” are nouns.
The latter conveys no ideas separable from the former. A wrong
must have a right to operate against. Every rule of law in
a body of municipal law involves a right, but not necessarily
what is right; and under the head “Rights” all of the law might
be classed. In fact, we know this is just what Blackstone really
does, though he translated “jus” and “jura,” in this connection,
“right,” while the words mean “law.”
Book I consists of the Rights of Persons; Book II, of the
Tights of Things or Property, or the rights of persons concern-
ing things, which is Blackstone's meaning; Books III and IV,
the Law of Actions, Private and Public, meaning not, however,
the rights and wrongs of actions, but, as he himself says, the
means of obtaining redress and punishment. By classifying
these actions under Wrongs, Blackstone does not intend that
persons do not have a right to these actions or remedies. The
subjects discussed in Book IV are punishments for violation of
public rights. We know that the right to a hearing in court
in vindication of any of our other rights is a constitutional
right, and in reference to contracts constitutes their obligation,
binding force, and indeed their only valuable attribute. Chief
Justice Taney says: It is this remedy by an action in court
which constitutes “the part of municipal law which protects
the right, and the obligation by which it enforces and main-
tains it.” . . . It is this protection which the clause in the
constitution (sec. 9, art. 10) now in question mainly intended
to secure, and it would be unjust to the memory of the distin-
guished men who framed it to suppose that it was designed
to protect the barren and abstract right without any practical
operation upon the business of life.”
1 Prof. Hammond’s Introduction to 8 Bronson v. Kinzie, 1 How. 311, 317.
Sanders’ Justinian, p. 50. See also Cooley's Const. Lim. (6th ed.)
*Actions Subordinate to Rights, 1 344, 350, citing dissenting opinions of
Blk, 140. Judges Washington, Thompson and
92 PRIMARY CLASSIFICATION OF SUBJECTS. [$ 69.
Supposed Reason for the Definition.— Prof. Hammond, in his
recent edition of Blackstone, undertakes to refute the criticism
of Christian, Wilson, Cooley, Sharswood and others, though ad-
mitting that they are almost universally followed, on the ground
that they do not see, or they disregard, the importance of the
clause as connecting this definition with Blackstone's classifica-
tion, and undertakes to maintain that the definition is necessary
for the purpose of the division made by Blackstone. While
it is perfectly obvious that this definition gives apparent color to
the division, with all due respect to the distinguished editor's
manifest learning, it is clear that he signally fails to show, either
that this clause of the definition is required from the nature of
the word defined, or that it is true in fact, or that the division
was a natural or necessary one. The division was original with
Bale, while the definition was taken from the civil-law definition
of natural law. His note makes it quite plain that Blackstone,
following Puffendorf, Hobbs and other authors back to the
days of Cicero, attempts to apply the Roman definition of
natural law to municipal law, without observing the distinction
that a natural law, being of divine origin, must necessarily
conform to what is right, while municipal law, emanating from
man, may or may not; for the simple reason that a body of
men are no more certain to do right than an individual. This,
so far from covering the point, is a departure from it. It
is saying that, having classified into rights and wrongs, the
definition is necessary. Hence law commands what is right
and prohibits what is wrong, and from the definition the divis-
ion follows; while the question is: Does a law always command
what is right and prohibit what is wrong? Does it necessarily
conform to what is morally right? If not, the definition is
untrue. Neither is it true that all other classification is but
auxiliary to this primary division, as contended by Prof. Ham-
mond, Or, in fact, that any classification is dependent upon
the definition.
SEC. 69. Blackstone's Primary Classification. Not Adhered to
by Himself—Notwithstanding the great pains to which he
went to frame and defend his definitions of law and to demon-
Trimbell, in Ogden v. Sanders, 12 Wheat. 209; Douglass v. County of
Wheat. 213; McCracken v. Hayward, Pike, 101 U.S. 677.
2 How. 608; McMillan v. McNeal, 4
§ 70.]
PRIMARY CLASSIFICATION OF SUBJECTS. 93
strate the material dependence of his classification of the law,
as it relates to rights and wrongs, upon the definition, Black-
stone does not, in reality, introduce any new arrangement, nor
does his arrangement necessarily depend upon the closing
phrase of the definition.
Professor Hammond, one of the most scientific editors, points
out this fact quite clearly." The fact is that Book I of the
Commentaries has to do with the various classes of legal enti-
ties and their personal relations in Society — i. e., the status or
personas of men as we shall see it explained in the next chap-
ter. -
This book does not treat of all the rights of persons, but onl
their personal rights” (i. e., Public Relations, Domestic Rela-
tions, and Status). In the sense in which he uses the word
“person,” the subject of the second book constitutes the Prop-
erty Rights of Persons, and the third book the Right to Reme-
dies Afforded, or the Auxiliary Rights, as he terms them.
This Classification Was Wovel.—Blackstone refers to no
precedent for the formal arrangement, and none of his editors
have pointed out any. The body intended to be treated and
actually arranged was the law of England. The classification
ostensibly made was of rights, but so artificially is it done that
rights are apparently accorded to things.” S
SEC. 70. The Confusion Results from Imapt Use of Words.-
“Jurisprudence,” says Holland, “is specifically concerned only
with such rights as are recognized by law and enforced by the
l “Notwithstanding the care of
IBlackstone to connect the general
plan of his work and its chief divis-
ions with the definition of law given
in the introduction (p. 44, as to which,
see note 14, ante, p. 121), the Observ-
ant student will see that there is here
a departure from that conception.
JHe would naturally expect to find
the body of the work consisting of a
statement of the laws or rules which
command or forbid the actions of
man, and constituting thereby rights
and wrongs; he would expect to find
the character of these latter abso-
lutely determined by the rule which
Commands or forbids them. On the
Contrary, the conception of a law, and
especially the highest kind of law,
natural or ethical, disappears entirely
from this point onward; that is to
Say, in the main body of the work.
We have in its place the rights and
wrongs themselves, originating, it is
true, in that reason which is the com-
mon law, but rarely traceable to
any distinct command.” Hammond’s
Blk., p. 316.
*We are excluding corporations for
the present.
* “Rights of Persons and Rights
of Things.” Hammond asserts that
rights are not defined by Blackstone.
Int, to Sanders' Juris., p. L.
94 PRIMARY CLASSIFICATION OF SUBJECTS. [$ 70.
power of a state. We may, therefore, define a legal right, in
what we shall hereafter see is the strictest sense of that term,
as a capacity residing in One man of controlling, with the as-
sent and assistance of the state, the actions of others. That
which gives validity to a legal right is in every case the force
which is lent to it by the state. Anything else may be the Oc-
casion, but not the cause, of its obligatory character. . . .
This simple meaning of the term “a right’ is, for the purposes
of the jurist, entirely adequate." It has, however, been cov-
ered with endless confusion, owing to its similarity to ‘right,’
an abstract term formed from the adjective ‘right,’ in the
same way that ‘justice’ is formed from the adjective ‘just.”
JHence it is that Blackstone actually opposes rights in the sense
of capacities to wrong—in the sense of unrighteous acts.””
IProfessor Hammond, himself an editor of Blackstone, and the
one who has made the ablest attempt to defend him, says in
his learned introduction to Sanders’ Justinian,” speaking of
Blackstone's division into rights and wrongs: “As a scientific
distribution, this is no doubt open to criticism, since a wrong
can no more exist apart from right in law than a shadow with-
out substance in optics, a negative without positive in logic.”
Again, at page 50 he says: “We confess that seems to us the
weak side of Blackstone's entire system.” Walker says a
wrong always results from the violation of a right, so that by
describing the one we indicate the nature of its opposite. A
treatise, therefore, upon municipal law is for the most part a
treatise upon rights and remedies, as one may chose to express
it; and this suggests a remark upon Blackstone's primary divis-
ion of legal subjects into rights of persons, rights of things,
private wrongs and public wrongs. These expressions do not
on their face indicate that remedies are to enter into the discus-
sion. Moreover, the phrase “Rights of things,” “Jura rerum,”
by itself conveys no definite idea, since all rights are the rights
of persons; that is, they belong to persons, though they may
have relation to other things.” -
Indeed, Blackstone is inconsistent with himself, because, to
be consistent, he should have divided wrongs into wrongs of
1 See opinion of Chase, J., in Calder 2 Holland's Jur., 71, 72.
v. Bull, 3 Dall. *394, quoted by Web- 3 Page 48.
ster, 4. Wheat. 516, 4 Walker's Am. Law, p. 47.
§§ 71, 72.] PRIMARY CLASSIFICATION OF SUBJECTs. 95.
persons and wrongs of things. He says, in treating of private
wrongs: “For, as these (wrongs) are nothing else but an in-
fringement or breach of those rights which we have before laid
down and explained, it will follow that this negative system:
of wrongs must correspond with the former system of rights.
As, therefore, we divide all rights into those of persons and
those of things, so we must make the general distribution of
injuries” into such as affect the rights of persons and such as
affect the rights of property.”
SEC. 71. The Right to Redress in Court is a Right.— One
observation further will make the matter so plain that one can
more readily see it.
If laws are to be classified under rights at all, under that
head should be classed rights of action,” or the right to redress
in courts of justice, which Blackstone himself calls a right awa-
iliary to absolute rights, but without which the other rights
would be useless and protected only by the dead letter of the
law." He, however, treats it under the negative head of wrongs."
No better illustration could be asked of Bacon's remark, “that
men imagine that their reason governs their words,” while in
truth their words react upon the understanding, and, as a con-
sequence, science becomes Sophistical and inactive, and also of
the words of Burke, “that studies become habits of thought,”
than is found in the confusion the definitions and forms of ex-
pressions, imbibed from Blackstone by students at the outset of
study, has produced on their habits of thought.
A recent author, who has brought to the matter great learn-
ing and deep research, in his preface makes this candid state-
ment: “When the author began the study of law, he was, like
other students, bewildered by the confusion reigning in Black-
stone's and other text-books with regard to the nature and
general principles of private right.”"
SEC. 72. Municipal Law Defined.—Blackstone's confusion
results from two things: first, an erroneous definition of law;
1 Book 3, p. 119. - son v. Kinzie, 1 How. 311, 317; Board
* Notice the change from “wrong” of Education v. Blodgett, 155 Ill. 441;
to “injuries.” Campbell v. Holt, 115 U. S. 620.
3 “Property” is now substituted 51 Blk. Com. 141.
for “things.” 6 In BOOk III.
4 See 1 Wilson's Works, pp. 36, 46; 7 Smith’s Right and Law, Preface,
Austin's Jurisprudence, p. 764; Bron- p. 7.
96 IPRIMARY CLASSIFICATION OF SUBJECTS. $ 72.
and second, a labored attempt. On his part to make it appear
that the classification of legal subjects resulted naturally and
necessarily from definition. Had he followed more closely his
model (Hale), he would have avoided at least the charge of con-
fusion. “By some philosophers,” says Justice Wilson, “defini-
tion and division are considered as the two great nerves of
science. But, unless they are marked by the purest precision,
the fullest comprehension, and the most chastised justness of
thought, they will perplex, instead of unfolding—they will
darken, instead of illustrating, what is meant to be divided or
defined. A defect or inaccuracy, much more an impropriety, in
a definition or division, more especially of a first principle, will
spread confusion, distraction and contradictions over the re-
motest parts of the most extended system.” -
It must also be borne in mind that, there being many forms
of government, there will be as many different ideas of munici-
pai law. In a despotism the will of the ruler is law; in an-
other form of government, that which is agreed upon by the
people is law. It is useless to attempt to make one universal
definition which will be suitable alike to Roman, to English,
and to American jurisprudence. A definition cannot be given
except after the most perfect conception of the subject of the
definition. The truth is, no word can be truly defined until
the exact idea is understood in all its relations which the word
is designed to represent.” From this it would seem that in an
institutional work, such as the one in hand, a definition of law
need not necessarily precede the work, and would be useless at
the conclusion, for the reason that a perfect idea of the law
would then be had. Nevertheless, we will venture to define
municipal law in American jurisprudence as a rule agreed upon
by the people regulating the rights and duties of persons.”
From the fate which has attended prior definitions of the
law, it would not be surprising if this one was found too nar-
row in this, or too broad in that, view; but inasmuch as it is
apprehended that no definition of the law, or a law, is essential
to classification and analysis, we do not deem it wise to here
1 Wilson's Works, p. 52. must be understood before the defini-
* Matthews’ “Words, Their Use and tion readily defines; especially is this
Abuse,” 23. the case with the word “person.” See
* Several words in this sentence 1 Wilson's Works, 89,90. “That what
have a technical meaning, which is now called the common law of
§ 73.] PRIMARY CLASSIFICATION OF SUBJECTS.
97
spend any more time upon a definition, inasmuch as the nature
of law has been commented upon in the introductory chapter,
and must necessarily be thoroughly investigated in the future
prosecution of the work."
SEC. 73. Primary Classification—The Subjects of Jurispru-
dence.—American law or jurisprudence has two primary Ob-
jects, namely, municipal law and international law. These
will constitute the main heads of the analysis, using the former
term in its broadest sense, as used by jurists generally. These
two great branches of law are not distinct and separate—they
touch and support each other; but their orbit and sanction is
different, quite as much so as that of national and state law.
The consideration of this subject may be appropriately closed
by adopting, as indicative of the intention of the author, the
language of Lord Hale as to his intended treatment of the same
subject applied to English law: “Nor shall I confine myself to
the method or terms of the civil law, nor of others who have
given general schemes and analyses of law; but shall use that
method and those words and expressions that I shall think most
conducible to the thing I aim at.”
England was made up of a variety
of different laws, enacted by the Sev-
eral Saxon kings reigning Over the
distinct parts of the kingdom; which
several laws, affecting then only parts
of the English nation, were reduced
into one body and extended equally
to the whole nation by King Alfred,
appears from Fortescue's Preface;
and that it is therefore properly called
the common law of England, because
it was done ‘wt in jus commune totius
gentis transiret.” But it had an an-
cienter original than Edward the
Confessor, and was at first called the
foloright or people's right (for it is
plain it could not be called the com-
mon law in Edward the Confessor's
time, for then they spoke Saxon; nor
in William the Conqueror's time, for
then they spoke French), but it re-
ceived this name when the language
came to be altered. And Lord Coke
them.”
(1 Inst. 142) says: ‘The common law
is Sometimes called right, common
right, common justice.’” Millar v.
Taylor, 4 Burr. 2343, 2344.
1 Mr. George H. Smith, in his learned
treatise on the Law of Private Right,
where will be found a criticism of
the common definitions of law, says:
“But while even a perfect definition
of the law would do but little to help
us at the threshold of our inquiries,
an incorrect definition, by giving usa,
false notion of the law and misleading
us as to the method to be pursued in
studying it, may do us infinite harm;
and hence it will be necessary for us
to examine at Some length the vari-
ous definitions that have been of-
fered — so far, at least, as may be
necessary to avoid being misled by
Page xi.
2 Hale's Preface to Analysis.
7
CHAPTER IV.
PERSONAL RELATIONS – THINGS — ACTIONS.1
“Was it Mirabeau, Mr. President, or what other master of the human
passions, who has told us that words are things? They are, indeed,
things, and things of mighty influence, not only in addresses to the pas-
sions and high-wrought feelings of mankind, but in the discussion of
political and legal questions also; because a just conclusion is often
avoided, or a false one reached, by the adroit Substitution of One phrase
or one word for another.”—Webster's Reply to Calhoun.
SEC. 74. The Difficulty of Communicating Ideas.- In this
chapter we shall endeavor to show what we understand to be
the main heads to be adopted in the classification of the civil
branch of American municipal law. The main obstacle en-
countered in such a discussion is the difficulty of conveying,
in written language, the exact ideas intended. Mr. Madison,
in the Federalist,” very aptly points out the impediment in the
following language: -
“Besides the obscurity arising from the complexity of ob-
jects and the imperfection of the human faculties, the medium
through which the conceptions of men are conveyed to each
other adds a fresh embarrassment. The use of words is to ea:-
press ideas. Perspicuity, therefore, requires not only that the
ideas should be distinctly formed, but that they should be ex-
pressed by words distinctly and exclusively appropriated to
them. But no language is so copious as to supply words and
phrases for every complex idea, or so correct as not to include
many, equivocally denoting different ideas. Hence it must
happen that however accurately objects may be discriminated
in themselves, and however accurately the discrimination may
be conceived, the definition of them may be rendered inaccu-
rate by the inaccuracy of the terms in which it is delivered;
1 The matters considered in this is easy. Pass them over lightly,
chapter, and examined with such gaining only obscure ideas of their
minute care, are really the touch- meaning, and the law seems a laby-
stones of the law. At every turn in rinth, and the cases applying it a for-
practice they are encountered. Mas- est without order.
ter them at the outset and the way 2 No. 37.
§ 75.] PERSONAL RELATIONS — THINGS — ACTIONS. 99
and this unavoidable inaccuracy must be greater or less, accord-
ing to the complexity and novelty of the objects defined. When
the Almighty himself condescends to address mankind in their
own language, his meaning, as luminous as it must be, is ren-
dered dim and doubtful by the cloudy medium through which
it is communicated.”
SEC. 75. Suggestions on Criticism, Construction and Inter-
pretation.— This suggests a remark in reference to the spirit
of criticism of the productions and writings of others, a re-
mark equally applicable and useful in connection with the
subject of construction and interpretation of laws or docu-
ments." Before condemning any one as inaccurate, erroneous
or nonsensical, the position of the writer, the age in which he
lived, the subject-matter, and indeed the very meaning of the
words in the Vernacular and idiom of the language of that day,
should be comprehended; and with this view the author has
taken the greatest pains not to do injustice to any of those
whose language, expressions or efforts he is obliged to discuss
in this and the preceding chapter.
On first reading, to a person of the present day and sur-
rounded with the institutions and ideas which obtain in the
United States, Blackstone’s language” seems jargon and to
convey indefinite ideas; but it must not be forgotten that a
century and a quarter has elapsed since the words were penned,
and because of the widely different principles of our govern-
ment from those enunciated by Blackstone, a great change
has taken place in the meaning of words.
As ideas change, the meaning of words change. “Nature's
live growths crowd out and rive dead matter. Ideas strangle
statutes.” Lord Coke says: “The principles of natural right
are perfect and immutable, but the condition of human law is
ever changing, and there is nothing in it which can stand for-
ever. Human laws are born, live and die.”*
In the present chapter we are obliged to discuss words which
have been in constant use for centuries, associated with the
same ideas, though ever changing somewhat in meaning to suit
the requirements and notions of the age and people using them.
1 On pp. 122, 123 of Book 1.
*See Lyle v. Richard, 9 S. & R. 356. Lectures, 278.
4 Calvin’s Case, 7 Rep. 12, 13.
3 Wendell Phillips’ Speeches and
100 PERSONAL RELATIONS —THINGs — ACTIONS. [$$ 76, 77.
SEC. 76. Meaning of Leading Words Obscure.-Mr. Austin
says: “Of all the perplexing questions which the science of
jurisprudence presents, the notion of status or condition is in-
comparably the most difficult, and much of the obscurity in
which it is involved arises from the way it has been treated
by the modern commentators upon the Roman law.”
We may substitute for the word “status” in the above sentence
the word “person;” for, if we do not find them synonymous,
we will find the two terms very intimately associated. This
word “person,” and its scope and bearing in the law, involv-
ing, as it does, legal fictions and also apparently natural beings,
it is difficult to understand; but it is absolutely necessary to
grasp, at whatever cost, a true and proper understanding of
the word in all the phases of its proper use.
In the discussion of this question, two methods are admissi-
ble: one is to state the meaning of the words used as they
obtain to-day without reference to what their meaning has been
heretofore; the other is more like the method pursued in com-
parative jurisprudence, of showing the etymology and prior
use of the terms in other systems, directly or remotely con-
nected with our own. The latter course will be adopted; for
while it may not have the same appearance of Originality, and
may detract somewhat from the literary style of the work, it
will nevertheless put the reader directly in possession of the
materials which prove or refute the argument; and a knowl-
edge of the prior use of words is always of great value in a
proper understanding of their present meaning.
SEC. 77. Public and Private Law.—There have been various
ways suggested of classifying municipal law, e.g., the written
or statute law, and unwritten or common law. This classifica-
tion depends upon the form in which the rules are expressed.
Another division may be into substantive law, which amounts
to the directory and declaratory part of the law and adjective or
Temedial law.” -
Still another classification is into public and private law.”
This latter division has some advocates and some apparent rea-
son for the division.* For example, public law relates largely
1 Austin’s Jur. 362. 4 Holland's Jur. 109; Pomeroy's
2 Austin’s Jur. 797. - Const. Law, §§ 4–12. *
3 Ibid. -
tº
• * a s ,
&
§ 77.] PERSONAL RELATIONS — THINGS — ACTIONS.
101
to public relations; but upon investigation it will be found that
the law cannot be presented in two separate bodies, and that
the subjects classed under either of the general heads will be
found embraced as subordinate to the general heads which are
adopted." —s !
This classification is proper as a theoretical division unac-
companied by an attempt at arrangement under particular
heads; but the moment the application is made, the theory will
be destroyed by the attempt at application—that crucial test
which at last shatters all theories, however beautiful when ab-
stractedly indulged. There is no body of public law which is
separate from another body of private law.
The best exposition of the method is that of Pomeroy. He
says: “Public law embraces those precepts (rules) which im-
posed duties and conferred rights upon the political superiors in
the state, supreme or subordinate, while the rules which control
the subject members of the state in their relation to the whole
body ought in strictness to be ranged in private laws; but as
1 Austin’s Jur. 70, 751, 752, 777, 960.
Austin says: “In rejecting the divis-
ion of the law into public and pri-
vate, and in classing political with
other conditions, Hale, I believe, is
Original and nearly singular. In an
encyclopedia by Falck, a professor
of law at Kiel, it is said that the au-
thors of the Danish code, with those
of the Danish writers who treat law
systematically, observe, in this re-
spect, the arrangement observed by
Bale. But in all the treatises by
continental jurists which have fallen
under my inspection, law is divided
into public and private, though the
province of public law is variously
determined and described.” Aus-
tin's Jurisprudence, vol. 1, p. 71.
Again he says: “If, then, the law of
political persons be opposed by the
name of public law to the rest of the
legal system, one of these absurdities
inevitably ensues: either a bit of
the corpus juris is opposed to the
bulk or mass; or (to avoid that ab-
Surdity) the rest of the legal sys-
tem must be appended to the pub-
lic law; and public law, plus the
rest of the legal system, must be op-
posed to that rest of the legal sys-
tem from which public law is sev-
ered. . . . Agreeably to the view
which I now have taken of the sub-
ject, Sir Matthew Hale, in his Analy-
sis of the Law, and Sir William Black-
Stone, following Sir Matthew Hale,
have placed the law of political per-
Sons (SOvereign or subordinate) in the
law of persons; instead of opposing
it, as One great half of the law, to the
rest of the legal system. Blackstone
divides what he calls law regarding
the relative rights of persons into
law regarding public relations and
law regarding private relations.
TJnder the first of these he places
constitutional law and the powers,
rights and duties of subordinate mag-
istrates, of the clergy, and of persons
employed by land or sea in the mili-
tary defenses of the state.” Austin’s
Jur., vol. 2, pp. 776, 777.
102 PERSONAL RELATIONS — THINGS — ACTIONS. [$ 77.
these relations are public in their nature, the rules themselves are
also considered as a part of the public law. Again, the private
law includes rules which are definite rights, powers, capacities
and incapacities of various classes of persons, private, domestic
or professional—the rights of property, etc. Again, public
law touches and affects the state in its organic unity.” The
conception of dividing the law into two parts, public and pri-
vate, fails to observe what has always been the accepted
doctrine, that the body politic itself is a person, that all magis-
trates are persons, that all corporations are persons, that all
individuals are persons, and that all rights cluster around and
radiate from persons as they stand in some capacity or inca-
pacity in which they are clothed by law. The recognition of
this enables Hale and Blackstone to present a beautiful outline
of English law. It is the strong side of their plan. It is some-
times said that constitutional law is not treated by Blackstone,
but this is an error. All the recognized rules of constitutional
law of England are in some form or other treated by Black-
stone under the law of persons, very much of the same being
again repeated under the law of wrongs — a defect which
SWelled the volume of his work and tended to confusion on
account of the repetition. .
In most treatises upon American law, the lack of an analysis
of the subject such as that possessed by Hale and Blackstone
prevents the treatment of the constitutional law of America
under the law of persons, and this place has been taken by
the title-head “Constitutional Law,” to the utter confusion, in
fact, of all logical method in text writing, for the reason that
there is no right, tangible or intangible, personal, or of prop-
erty, which is not protected by the constitution. There is no
authority, legislative, executive or judicial, which is not limited
by the constitution. When subjected to examination it will
be found that under the public law of these authors will be
found the relations of men in regard to public matters, as Mag-
istrate and People, and there will always be found that con-
fusion contained in the statement of Professor Pomeroy that
those rules (laws) which control the subject member of the state
in the relations with the whole body ought in strictness to be
ranged in the private law; but as these relations are public
in their nature, the rules themselves are also considered as a
§§ 78, 79.] PERSONAL RELATIONS — THINGs — ACTIONs. 103
part of the public law. On the contrary, if the capacities or
incapacities, powers or duties of the public functionaries are
treated directly in relation to their capacity as persons, we ob-
tain exactly the notion we desire, namely: the identity of the
alleged person, and the powers, duties, obligations and disabili-
ties appended thereto by law; and I apprehend that upon inves-
tigation it will be found that the subjects classed under either the
general heads public or private law will be found to be treated
more analytically and specifically as subordinate to the general
heads which we shall hereafter adopt.
“Public law,” says the Institutes, “relates to the government
of Rome.” It also included criminal law, which is not treated
in the Institutes." -
SEC. 78. Ancient Classifications.— The attempts to classify
systems of law that have been attended with anything like suc-
cess are those of Gaius, Justinian, Hale, and Blackstone. In
the Commentaries of Gaius and the Institutes of Justinian, we
have nothing on the subject of political relations excepting
something regarding the sources of law. The analysis of Hale
did not include the criminal law, as he had treated that subject
in his “Pleas Of the Crown.”
All of these attempts at classification have proceeded upon
what we believe to be the true principle of legal analysis,
namely: a classification of laws according to the objects to
which the rules relate, or, as we might otherwise put the same
idea, laws are to be classified according to the subject-matter
of the law, each and all being intimately connected with the
ideas and nomenclature of the law of the United States; and in
many cases we will see terms borrowed from one or the other
to express ideas not at all similar to the idea conveyed by the
same word as originally used. .
SEC. 79. Persons and Things.--It is not strictly true that
Dlackstone makes no use of the classification into Rights and
Wrongs in the body of his work, as we shall presently see; for
in chapter 1 of the Commentaries proper, he says: “Now, as
municipal law is a rule of civil conduct commanding what is .
right and prohibiting what is wrong, it follows that the prin-
cipal objects of law are Rights and Wrongs; ” and in the prose-
cution of the Commentaries he professes that he will follow the
1 Austin's Jur., vol. 2, p. 778.
104. PERSONAL RELATIONs—THINGs — ACTIONS. [$ 79.
very obvious division of the law into Rights and Wrongs, and
the title of the first book is “The Rights of Persons.” He
then proceeds: “Rights are liable to another subdivision; either,
Jīrst, “those which concern and are annexed to the persons of
men and are then called jura personarum, or the rights of per-
Sons; or Second, such as a man may acquire over external ob-
jects or things unconnected with his person, which are styled
jura rerum, or rights of things.”
He does not, however, classify wrongs as the wrongs of per-
Sons and the wrongs of things. This division of “rights” into
rights of persons and rights of things is apparently based upon
a supposed adherence to the arrangement of the Roman law,
and also a translation of the Latin expression jura personarum,
and jura rerum as the rights of persons and the rights of things.
Gaius treats the subject under the title-head, “the divisions
of the law,” not the division of rights, his expression in Latin
being, “Omne autem.jus quo utimurval ad personas pertinet, vel
ad res, vel ad actiones,” and is translated by Sanders, “all our
law (not rights) relates either to persons, to things, or to ac-
tions.” 1
Austin has been criticised as using harsh language because
he characterizes the translation by Hale and Blackstone of
Żura personarum and jura rerum, with rights of persons or
rights of things, as mere jargon; * but it must be remembered
that it is a very serious defect in an institutional work to make
use of any expression, without explanation, which it is neces-
sary to explain before it conveys an intelligent idea, and which,
also, when explained to one acquainted with the vernacular in
which the book is written, expresses an idea entirely different
from the idea suggested by the words used.
There is no difference of opinion as to the meaning of the
words jura personarum, and jura rerum, when used in these
connections; all are agreed that in these situations these words
mean law of persons or law relating to persons and law relat-
ing to things, and not the rights of persons and the rights of
things.”
The whole confusion in regard to rights and wrongs, and
1 Gaius, 1–8; Sanders’ Justinian, 8 See also Sanders’ Justinian, Ham-
1–3; Austin’s Jur. 983. mond’s Int.; Holland's Jur.; Austin’s
* Austin's Jur., p. 294, note. Jur. 157, 376, 715, 761, 763, 983.
§ 80.] PERSONAL RELATIONS — THINGS — ACTIONS. 105.
rights of persons and rights of things, results from Blackstone's
transplanting the nomenclature and definitions of natural law,
borrowed from Roman law, into England without the use of
intelligent translation and apt explanation.
SEC. 80. Rights of Persons — Blackstone's Meaning.— It has
been claimed that this error in translation, rights of persons
and rights of things, instead of laws concerning persons and
laws concerning things, arises on account of ignorance, so far
as Blackstone was concerned." If it is so absurd an error as
claimed by Mr. Austin, Blackstone erred in good company, for
he merely followed Lord Hale, who was at least the equal of
any other lawyer of his day. That jura personarum and jura,
Terum could not properly be translated rights of persons and
fights of things, but that the word “jura, ’’ in that connection
meant law, is perfectly clear; but that the expression used by
Lord Hale, and followed by Blackstone, was ignorantly used,
without a clear understanding of the meaning of the words used
as qualified by them, is not at all apparent.
Christian, in notes to Blackstone's Commentaries, at this point
says: “But the distinction of rights of persons and rights of
things in the first two books of the Commentaries seems to have
no other difference than the antithesis of the expression, and
that, too, resting upon a solecism; for the expression rights of
things or the right of a horse is contrary to the idiom of the
English language. We say invariably a right to a thing. The
distinction intended by the learned judge in the first two books
appears in a great degree to be that of the rights of persons in
public stations, and the rights of persons in private relations.””
Walker, in his treatise on American Law, says in regard to
the primary division of legal subjects into rights of persons and
rights of things: “Private wrongs and public wrongs. These
expressions do not on their face indicate that remedies are to
enter into the discussion; moreover the phrase “rights of
things” by itself conveys no definite idea, since all rights are
rights of persons, i.e., they belong to persons, though they may
have relation to other things.”
Judge Cooley says all individual rights are, or must be,
rights of persons. They may be rights which concern their
1 Austin’s Jur. 71, 294, 715. 8 Walker's American Law.
* 1 Sharswood’s Blk. 1, 122, note.
106 PERSONAL RELATIONS —THINGs — ACTIONS. [Š$81, 82.
personal safety or liberty, or they may be relative rights per-
taining to them as members of families or civil or political so-
cieties, or they may be rights to possess and enjoy animate and
inanimate things. To speak of the right of things, though
correct enough in the sense which it is hereafter explained, is
likely to convey inexact ideas and therefore misleading. By
“rights of persons” we are likely to understand rights which
belong to and are possessed by persons, but in that sense there
could be no rights of things."
SEC. 81. Austin’s Misstatement of Blackstone's Meaning.—
Austin says: But the distinction, as explained in the cited places,
is not only founded upon a misapplication of language, and
thereby involves the subject in obscurity; it is also inconsistent
with the subsequent exposition which he gives of these same
rights. According to the terms of the distinction, the rights of
persons are such rights as men have to their own persons or
bodies, freedom from bodily harm, etc., so that all such rights
as a man may have in, over and to external objects (whether
to other persons or things) ought, in pursuance to the same
distinction, to have been excluded from the rights of persons
and treated of nowhere but under the rights of things.
He instances husband and wife, father and child, as such
rights as a man may have over external objects. In conse-
quence of his misapprehension of the term “rights of persons,”
he has treated (Book I, chapter 1) rights to life, reputation, etc.,
with the obligation to respect them, under the rights of persons,
although, as being common to every status, it is manifest that
they belong to the rights of things.”
It is plain that Austin has not expressed the meaning of Black-
stone's qualifying phrases. Blackstone does not say rights of
persons are such as men may have to their own persons, but
“which concern and are annexed to the persons of men.”
SEC. 82. Different Views of Blackstone's Meaning.—No bet-
ter illustration of the confusion of ideas conveyed by the words
of Blackstone, as contained on pages 122 and 123 of volume I
of the Commentaries, can be given than will be found by com-
paring the notions of the meaning as given by the notes to
those pages by Walker, Christian, Cooley and Austin with each
other, and then with the explanation given by Prof. Hammond.
1 1 Cooley's Blk. (3d ed.), 122, note. 2 Austin's Jur. 762.
§ 82.] PERSONAL RELATIONS — THINGS — ACTIONS.
10'ſ
The conclusions are quite different from each other, and each
is different from the idea expressed by Prof. Hammond; the
latter has expressed the meaning intended.
Let us compare briefly these motions. - *
Mr. Christian takes it that the distinction between rights of
persons and rights of things commented upon in the first two
Books is the difference between persons in public stations and
in private relations. This is not correct, as will be seen by turn-
ing to the analysis as found in any edition of the Commenta-
ries. It will be seen that the public relations are magistrates
and people, and the private relations are master and servant,
husband and wife, parent and child, guardian and ward. These,
with the subject of corporations, are all embraced within the
expression “rights of persons,” and actually treated in Book I;
while under the title-head “Rights of Things,” in Book II, is
treated the subject of “Property.”
Mr. Walker understands that the phrase “rights of things”
conveys in itself no definite idea."
Mr. Justice Cooley sees matter as explained clearly enough,
but he adds: “The language used is likely to convey inexact
ideas, and therefore be misleading,” adding: “By ‘rights of
persons’ we are likely to understand rights which belong to
and are possessed by persons,” and that “in that sense there can
be no rights of things.” But, as we shall see, of possession, or
belonging to, is not quite correct. The idea of Hale and Black-
stone in reference to rights of persons is the difference in the
conditions of men and rights depending thereon.
Professor Austin understands that “Plackstone's ‘rights of
persons’ are such rights as men may have to their own persons
Or bodies.”
Professor Hammond says Blackstone does not deserve the
criticism and ridicule that has been spent on his supposed mis-
1 Walker says: “A treatise, there- their face indicate that remedies are
fore, upon municipal law, is, for the
most part, a treatise upon rights and
remedies, Or upon wrongs and rem-
edies, as One may choose to express
it; and it suggests a remark upon
Blackstone's primary division of legal
Subjects into rights of persons, rights
Of things, private wrongs, and public
wrongs. These expressions do not on
to enter into the discussion. More-
over, the phrase “rights of things,”
jura rerum, by itself conveys no
definite idea, since all rights are the
rights of persons; that is, they belong
to persons, though they may have re-
lation to other things.” Walker's
Am. Law, p. 47.
108 PERSONAL RELATIONS — THINGS — ACTIONS. [$ 82.
takes, and asserts that in this passage he states, as clearly as
any of his critics have done,' that things are the objects and
persons the subjects of rights.”
The learned editor then submits eight pages of notes in ex-
planation of Blackstone's meaning of these Latin expressions
taken from the Roman law, and the English equivalents given
by him, in which he shows clearly:
JFºrst. That the idea intended by Blackstone was different
from that conveyed by the Latin expressions jura personarum,
and jura rerum.
Second. That the idea expressed by “rights of persons” and
“rights of things,” standing alone, did not convey to the Eng-
lish reader the idea intended by the author. *
Third. That Blackstone had a definite idea which he in-
tended to express by these words, and that the explanatory
words did express the true meaning; and it is gratifying to
find that Professor Hammond has given an explanation of the
meaning of the expressions intended by Blackstone which seems
reasonable and useful as applied to English jurisprudence.
JBlackstone's Jºplanation.—What is the explanation given
by Blackstone? All that there is, is found in the qualifying
phrases italicised. “Rights of persons,” he says, “are those
which concern and are annexed to the persons of men; secondly,
rights of things are such as a man may acquire over easternal
objects or things unconnected with his person.”
This explanation may be clear to one who has spent years
in the investigation of legal subjects, and who has thereby be-
come possessed of so much learning as to be able to explain
not merely the ideas actually conveyed by the words used, but
to arrive at the ideas intended to be conveyed by the person
using them; but the explanation will be found by the unin-
itiated only to add to the confusion, for the reason that the
rights of persons are said to be those which are annexed to
the persons of men, and there is no explanation anywhere af-
forded by him of any distinction between the word “persons”
and the word “men; ” and the rights of things are confined to
those which a man may acquire to external things; while he
1 The critics have not explained at 8The use of the two words objects
all. and things renders the phrase in-
31 Hammond’s Blk, 330. definite.
§ 83.] PERSONAL RELATIONS — THINGS — ACTIONS. 109
immediately points out that there are artificial persons that
are not men, and yet may and do enjoy the right of things.
Indeed, we have seen that three learned men, viz., Walker,
Christian and Austin, have failed to get the true meaning as
explained by Professor Hammond, which is submitted below."
SEC. 83. The Law of Persons in English Jurisprudence Dif.
fers from the Same in Roman Law.—It is apparent that a
proper explanation lies at the threshold of any analysis, and it
is conceived that no progress can be made till the proper con-
ception is had of the leading terms used. We have asserted in
effect that the ideas contained in the expression found in Gaius
and the Institutes, that “all our law relates to persons, to things,
and to actions,” are applicable to American jurisprudence as well
as to the English and Roman.
In what sense does Blackstone use the expression “rights of
persons?” In the sense of rights belonging to persons? or does
he use the word of in the sense of concerning or relating to ?
That is determined by referring to the text.
The jura personarum, or “rights of persons,” Blackstone ex-
plains to be those which concern and are annexed to the persons
of men. The jura rerum, or rights of things, are such as a man
may acquire over easternal objects or things unconnected with
his person. This is an odd expression to use in a definition of
the rights of persons, i. e., the rights of persons are the rights
which concern the persons, to which is added the phrase “of
men,” making it read, “the persons of men,” although “per-
sons” seems to be used as equivalent to “man.” Why not say,
concern the persons of persons, or man of men, or simply men?
It will be seen that, in the first connection, the word of is
used in the sense of “concern” and “relating to,” instead of
“belonging to,” and the second are defined to be, not the right
of things at all, but such rights as a man may acquire over
objects and things not connected with his person. On another
page, however, he says that certain absolute rights of individ-
wals (not persons) are such as would belong to the persons merely
in a state of nature, thus introducing another Word, viz., indi-
vidual.” - -
Some authors assert that Blackstone did not understand what
was intended by Gaius and the Institutes;* others, that the
1 Post, p. 123. *Austin's Jur., lec, XL; Holland, 71.
21 Blk, Com., p. 123. -
110 E’ERSONAL RELATIONS — THINGS — ACTIONS. [$ 84.
^
meaning of his expressions, if once thoroughly comprehended,
was justifiable."
The commentator should have the benefit of the construction
most favorable to him, that in using the expression “rights
of things” he used this word “of” in the sense we have sug-
gested, namely, “concerning” or “relating to,” which will leave
his expression less liable to criticism on that ground; and it
would then appear that he had distinguished certain rights as
relating to persons, and certain rights as relating to things,
though we still have the expression that absolute rights of in-
dividuals are such as would belong to (not concern or relate)
their persons in a state of nature, and it is not made plain to us
just what political or civil rights a man would have in a state
of nature, and their absolute rights are plainly the civil rights
of Hale, and such as we term “civil” rights.”
By translating jura as “rights” instead of “laws” seemingly
puts us in the situation of having persons and things alike the
objects of rights,” instead of having laws relating to persons and
things, and we have not been told who is the possessor of the
rights of persons or the rights of things. This is left to impli-
cation, and by reason thereof confusion and obscurity pervade
what should have been the clearest part of the Commentaries.
Jeremy Bentham, in his remarks in reference to the inexact
use of language by Blackstone in pages 47 and 49 of the Com-
mentaries, says: “When leading terms are made to chop and
change their several significations, sometimes meaning one
thing, sometimes another, at the upshot perhaps nothing, and
this in the compass of a paragraph, One may judge What Will
be the complexion of the whole context.” “ .
SEC. 84. The Legal Conception of Leading Words.-Inasmuch
as the words person, man, thºng, property, rights, wrongs and
actions are leading terms constituting the designation of depart-
ments of the corpus juris, it will be impossible to obtain clear
conceptions of subjects connected with these words until an un-
derstanding is agreed upon as to the sense in which these terms
1 Hammond's Blk., note, p. 316. child, etc., but these are not rights
2 See next chapter. in personam by the Roman law. They
3 This is more in conformity to the would be according to Blackstone's
Roman law than many who criticise qualifying phrase. See next chapter.
Bale and Blackstone seem to realize. 4 Fragment on Government, ch. 1,
There is a real dominion Over persons, sec. 3.
e.g., husband and wife, parent and
§ 85.]
PERSONAL RELATIONS — THINGS — ACTIONS. 111.
are used. If we arrive at the meaning of these words intended
by Blackstone and make the same clear, we will have a better
idea of his method and perhaps a better opinion of it, and at
the same time will be able to show the distinction between the
same words in the Roman, the English and in American law.
Blackstone apparently uses the Roman word personarum as
synonymous with the English word “person,” and the latter
word interchangeably with “individual” and “man,” whereas
he might have avoided all confusion by a closer adherence to
that which he professed to follow.
SEC. 85. The Word “Person.” Defined.— Gaius says “IDe
juris devisione” [the divisions of the law] immediately preced-
ing his division of the law; then follows, “De conditione hom-
&num ” [meaning the condition or status of men].
In the Institutes' “JOe jura personarum,” precedes the ex-
pression “All our law relates either to persons, or to things, or
to actions.” The words persona and personae did not have the
meaning in the Roman which attaches to homo, the individual,
Or a man, in the English; it had peculiar reference to artificial
beings, and the condition or status of individuals.”
1 Liber, tit. 3.
2 Sanders’ Justinian, 1–3, notes;
Austin’s Jur., pp. 41, 157, 362,363, 376,
715, 730, 762, 983. ‘. . .
Professor John Austin’s View.—
“Many of the modern civilians have
narrowed the import of the term ‘per-
Son” as meaning a physical or natural
person. They define a person thus:
“homo, cum statu suo consideratus; ”
a ‘human being, invested with the
condition of status.” And, in this
definition, they use the term status
in a restricted sense, as including
Only those conditions which com-
prise rights, and as excluding con-
ditions which are purely onerous and
burthensome, or which consist of du-
ties merely. According to this defi-
nition, human beings who have no
rights are not persons, but things,
being classed with other things
which have no rights residing in
themselves, but are merely the sub-
jects of rights residing in others.
Such, in the Roman law, down to the
age of the Antonines, was the posi-
tion of the slave.” Austin's Jur., vol.
1, p. 358.
The Sigmification in Our Jurispru-
dence.— “The word ‘person,’ in its
primitive and natural sense, signi-
fies the mask with which actors,
who played dramatic pieces in Rome
and Greece, covered their heads.
These pieces were played in public
places, and afterwards in such vast
amphitheatres that it was impossible
for a man to make himself heard by
all the spectators. Recourse was had
to art; the head of each actor was
enveloped with a mask, the figure of
which represented the part he was
to play, and it was So contrived that
the opening for the emission of his
voice made the Sounds clearer and
more resounding, v003 personabat,
whence the name persona was given
to the instrument or mask which
facilitated the resounding of his
voice. The name persona was after-
wards applied to the part itself
112 PIERSONAL RELATIONS — THINGS — ACTIONS.
[$ 85.
The word “homo” corresponds to the English word “man,”
and, as the Romans expressed it, “unus homo sustinet plures
personas; ” i. e., One man has many persons, or sustains many
Status, or many different conditions."
Austin says: “The term ‘person’ has two meanings, which
must be carefully distinguished. It denotes a man or human
being; or it signifies some condition borne by a man. A per-
son (as meaning a man) is one or individual, but a single or
individual person (meaning a man) may sustain a number of
persons (meaning condition or status).”” -
Notice that this meaning is not so broad as that given by
Ortolon (post, page 114). It does not include artificial persons.
Again he says: As throwing “light on the celebrated dis-
tinction between jus rerum and jus personarum, phrases which
have been translated so absurdly by Blackstone and others,
*ights of persons and rights of things, jus personarum did not
mean law of persons, or rights of persons, but law of status,
or condition. A person is here not a physical or individual per-
son, but the status or condition with which he is invested. It
is a remarkable confirmation of this that Gaius, in the margin
purporting to give the title or heading of this part of the law,
has entitled it thus: De conditione hominum; and Theophilus,
in translating the Institutes of Justinian from Latin into
Greek, has translated jus personarum . . . divisio person-
arum; understanding evidently by persona. . . . not an
individual or physical person, but the status, condition or
character borne by physical persons. This distinctly shows the
meaning of the phrase jus personarum, which has been in-
volved in impenetrable obscurity by Blackstone and Hale.
The law of persons is the law of status or condition; the law
of things is the law of rights and obligations” considered in a
general manner, or as distinguished from those peculiar collec-
which the actor had undertaken to
play, because the face of the mask
was adapted to the age and the
character of him who was consid-
ered as Speaking, and sometimes it
was his own portrait. It is in this
last Sense of personage, or of the part
which an individual plays, that the
word persona is employed in juris-
prudence, in opposition to the word
man, homo. When we speak of a
person, we only consider the state of
the man, the part he plays in Society,
abstractly, without considering the
individual.” 1 Bouvier's Institutes,
note 1.
1 Austin’s Jur. 362.
2 Austin’s Jur. 363.
8A word of caution is necessary
here against accepting this statement
as applicable to English and Amer-
ican law. See next chapter.
§ 85.] IPERSONAL RELATIONS — THINGS — ACTIONS. 113
tions of rights and obligations which are styled conditions
and considered apart.”"
A moment's reflection enables one to see that man, and person
cannot be synonymous, for there cannot be an artificial man,
though there are artificial persons. Thus the conclusion is
easily reached that the law itself often creates an entity or a
being which is called a person; the law cannot create an arti-
ficial man, but it can and frequently does invest him with
artificial attributes; this is his personality, which we see and
by which we are affected.
The law does not distinguish between men except by their
personality, as king or magistrate, or as parent or husband or
wife, etc. While the idea may be difficult for the tyro to grasp,
the personality, i. e., this condition or status of a man, is entirely
the creation of the law. By nature all men are created free
and equal, i. e., of equal rank, equal rights; but the law does
not look upon all men as equal, though in the law of the United
States all men have equal civil rights.”
The question is asked, Who is that man? The reply would
be, that is the king or lord so and so, or the chief justice or the
president or governor. But what is the name of this person-
age? The name indicates the man, the title, rank or legal
standing of the person. .
The word “persons” denoted certain conditions of rank or
status with which a man was clothed by law. To adopt the
language of the same author, “the term ‘person,’ as denoting a
condition or status, is therefore equivalent to character.” It
signified, originally, a mask worn by a player, and distinguished
the character which he represented from the other charac-
ters in the play. From the mask which expressed the character,
it was extended to the character itself. From characters repre-
sented by players, or from dramatic characters, it was further
extended by a metaphor to conditions or status. For men, as
subjects of law, are distinguished by their respective cond-
tions; just as players, performing a play, are distinguished by
the several persons which they respectively enact or sustain.”
As we shall see, the word had a still broader meaning.
1 Austin’s Jur. 374. but uses the terms “character’’ or
2See Ex parte Virginia, 100 U.S. 368. “capacity.” See post, p. 121.
* Hale nowhere speaks of status, 4 Austin's Jur. 363.
8
114 PERSONAL RELATIONS — THINGS — ACTIONS. [$ 85.
“A slave,” says Holland, “having, as such, neither rights or
liabilities, had in Roman law, strictly speaking, no “status,’
‘caput,” or ‘persona.” On the day of his manumission, says
Modestimus, ‘incipit statum habere.” Before manumission, as
we read in the Institutes, “nullum caput habwit.’” "
The following is the explanation given by Mr. Sanders in
his translation of the Institutes: “The word persona had, in
the usage of the Roman law, a different meaning from that
which we ordinarily attach to the word “person.” Whoever or
whatever was capable of having, and being subject to, rights,
was a persona. All men possessing a reasonable will would
naturally be personae; but not all those who were, physically
speaking, men, were personab. Slaves, for instance, were not
in a position to exercise their reason and will, and the law,
therefore, refused to treat them as personae.””
On the other hand, many personae had no physical easistence.
The law clothed certain abstract conceptions with an exist-
ence, and attached to them the capability of having and being
subject to rights. The law, for instance, spoke of the state as
a persona. It was treated as being capable of having rights
and of being subject to them. These rights really belong to
the men who composed the state, and they flowed from the
constitution and position of associated individuals. But, in the
theory and language of law, the rights of the whole community
were referred to the state, to an abstract conception interposed
between these rights and the individual members of society.
So, a corporation, Or an eccleciastical institution, was a persona,
quite apart from the individual personae who formed the one
and administered the other. Even the fiscus, or the imperial
treasury, as being the symbol of the abstract conception of the
emperor's claims, was spoken of as a persona. The technical
term for the position of an individual regarded as a legal per-
son was status.” *
Ortolon’s Eºplanation of Personality."—The substance of the
above was undoubtedly taken from Ortolon’s treatment of the
1 Holland’s Jur. 81. 3 Sanders’ Justinian, Introduction,
* Slaves were not persons in the p. 26.
TJnited States until after the aboli- 4 Ortolon's History of the Roman
tion of slavery. 1 Hammond’s Blk., Law is among the best. It is, unfor-
334, note. * - tunately, not easily obtained.
$ 85.] PIERSONAL RELATIONS — THINGS — ACTIONS. 115
subject as given in his History of the Roman Law, which is sub-
mitted because it is clear and concise:
“The word ‘person’ (persona) does not in the language of
the law, as in Ordinary language, designate the physical man.
This word in law has two acceptations: In the first, it is every
being considered as capable of having or owing rights, of being
the active or passive subject of rights.
“We say every being, for men are not alone comprised therein.
In fact, law, by its power of abstraction, creates persons, as we
shall see that it creates things, which do not exist in nature.
Thus, it erects into persons the state, cities, communities, chari-
table or other institutions, even purely material objects, such
as the fiscus, or inheritance in abeyance, because it makes of
them beings capable of having or owing rights. In the inverse
sense, every man in Roman law is not a person. For example,
slaves were considered as the property of the master, especially
under the rigorous system of primitive legislation, because they
are the object and not the subject of law. This, however, did
not prevent the Romans from including them in another sense
in the class of persons. -
“We shall therefore have to discriminate between and to
study two classes of personae: physical or natural persons, for
which we find no distinctive denomination in Roman jurispru-
dence except the expressions taken from Ulpian, singularis
persona; " that is to say, the man-person; and abstract persons,
which are fictitious and which have no existence except in law;
that is to say, those which are purely legal conceptions or cre-
ations. -
“In another sense, very frequently employed, the word “per-
son designates each character man is called upon to play on
the judicial stage; that is to say, each quality which gives him
certain rights or certain obligations —for instance, the person
of father; of son as subject to his father; of husband or guard-
ian. In this sense the same man can have several persona, at
the same time. In this respect he resembles the player in a
comedy or drama.””
The last two paragraphs embrace all that Austin gives us in
the quotation given above.
From what we have seen, the following conclusion may be
! Does not this equal “individ- 2 Ortolen’s History of Roman Law,
uals?” 567–68.
j.16 PERSONAL RELATIONS — THINGS — ACTIONS. [$ 85.
drawn: The words persona and status were not synonymous,
though very nearly so. The word “person” had two meanings:
Jºrst. Every being, artificial or natural, capable of having
Or owing rights. -: ; -
ASecond. The characters, capacities, qualities or positions which
the law ascribed to certain men as individuals—that is, rank,
Condition, capacity — Słażus.
The technical term for the second meaning, namely, the
position, quality, character which a man bears, is status.
Status is not so broad as person, but always related to physical
IOleIl.
A slave had no rights, no rank, no standing, no capacity, and
consequently no status. This applies, of course, only to the
earlier days of Roman law, for subsequently slaves were given
a standing as men.
“In the earlier days of Roman law,” says Sanders, “no one
would have conceived this to be unnatural.”!
In the days of Gaius, it seems, he treats slaves as persons by
saying “Persons are freemen or slaves.””
In England all men were persons, and were divided into cer-
tain classes or ranks by virtue of which they had especial char.
acters, capacities, rights, privileges and immunities; for instance,
the right of magistracy, as king, as lord, etc. These were arti-
ficial. In human Societies men have certain standing, position,
capacity, according as they are sovereign or subjects, parents
and children, husband and wife, or citizens.
We have seen something of the etymology of the word, also
its meaning and application as used in the Roman law. We
know that the word “person’’ is a familiar one in English lit-
erature, both in England and America. We are endeavoring
to ascertain whether in the English language we have a right
to oppose persons to things for the purpose of classification of
rules of law, and if thereby We convey intelligent ideas.
We know that all laws emanate from persons, and also that
they operate against or upon persons; * that is, all law cer-
1 Sanders' Justinian, Int., 27; Aus- A state may in a sense fall under the
tin’s Jur., lect. 12, p. 358. designation, and laws be directed
2 Gaius, 1–9; Austin's Jur. 358. against states; but as the state acts
3Virginia v. Rives, 100 U. S. 332; 92 by individuals, in the same manner
id. 554; United States v. Harris, 106 it is operated upon through individ-
id. 629; Civil Rights Cases, 109 id. 3. uals.
§ 86.] PERSONAL RELATIONS — THINGS — ACTIONS. 117
tainly addresses persons. So of rights. We know that rights
'belong to persons, and that in that sense there cannot be the
rights of things. It should be borne in mind that we are en-
deavoring to classify the body laws, and not the rights which
are resultant from laws, and that the principle of classification
adopted is the difference in the objects to which the rules
relate.
There can bo found in the Commentaries of Blackstone no
definition of the word person, nor any explanation of the mean-
ing intended to be ascribed to the word “person,” and the
word is there used indiscriminately in the popular and legal
sense, interchangeably with “man” and “individual,” and also
to designate artificial beings capable of having rights; and
there is not the slightest hint that in using the Roman expres-
sions there is any change intended from the Roman idea of
the word “person,” though he does treat under the rights of
persons what he styles absolute rights, which would be called
“things” in Roman law.
SEC. 86. Scope of the Word “Thing.”— Of things,' which is
the subject of the second book, Blackstone says: “The objects
of your inquiry in this second book will be the jura rerum,
or those rights which a man may acquire in and to such easternal
things as are unconnected with his person.” Why not say un-
connected with him, himself? These are what the writers in
natural law style the “rights of dominion or property.” This
is the only definition given of the words “property” or “thing; ”
that is, the jura rerum equals those rights which a man may
acquire in and to external things. Otherwise put, the rights of
things are rights which a man may acquire to things uncon-
nected with his person; and these are what writers in natural
law style property; yet in the treatment of this subject the
learned commentator treats the subject of contracts, the main
feature of which is its obligation, or, in other words, the power
which the law affords one person of enforcing it by compelling
another person to perform it, or awarding damages for its
breach by an appropriate action by One person against another.
The inquiring student will ask, Is a thing property, and are
1 Observe the word “chose,” which modified meaning of both “person”
will be explained hereafter. Its mean- and “thing.”
ing has an important bearing on the
118 PERSONAL RELATIONS — THINGS — ACTIONS. [$ 87.
*
all things property? and if the word “thing” shall be held to
embrace any rights not having a tangible object, why are not
the rights of personal security, personal liberty and private
property embraced within the word “things?” In the case of
Chisholm v. Georgia, Justice Wilson, being obliged to discuss
the meaning of “states” and “sovereigns” in politics as ap-
plied to the jurisprudence of the United States, said: “In the
place of those expressions, I intend not to substitute new ones,
but the expressions themselves I shall certainly use for pur-
poses different from those for which hitherto they have been
frequently used.”
Such, it is apprehended, is exactly what Hale and Blackstone
did. In reality, they ascribed new and different meanings to
words taken from the Roman law, either broader or narrower
than the meanings of the same words in the Roman law, and
they did arbitrarily mistranslate jura, meaning law, to rights,
to suit the purpose.
So, in the prosecution of this work, in many instances we
will find words which were in common use in the English law
before the Revolution, which are now used in the jurisprudence
of the United States with meanings very different from their
old meanings; and the purpose of these inquiries as to the mean-
ings of these words is to avoid confusion by ascertaining the
appropriate meanings of the terms. It is for this reason that
we investigated the meaning of these words in the Roman law
and as used in English law by Blackstone.
Sec. 87. Ortolon's Explanation of “Things.”—Volumes have
been written on this subject, but I believe no authority is consid-
ered better upon the meaning of words in the Roman law than
the opinion of Ortolon; and, as he expresses himself in the clear-
est and most concise manner, his explanation of the meaning of
the word thing is submitted.”
“The word ‘things’ (res), even in law, is a flexible word,
which lends itself with marvelous facility to the wants and
whims of language. The question for us is its legal sense.
“In the same manner as the word persona designates in law
every being considered as capable of becoming the active or pas-
sive subject of right, so the word res designates everything
12 Dall. 421. 2 The work is quite scarce; I be-
lieve out of print.
§ 87.] PERSONAL RELATIONS — THINGS — ACTIONS. 119
which is considered susceptible of forming the object of rights;
and in this category is included everything which man, the
universal dominator, has been able to regard as subject, or at
least destined to minister, to his wants and his pleasures; for,
in reality, the end which a man proposes to effect by the exer-
cise of rights is the satisfaction of his wants and the enjoyment
of reasonable pleasures, either in his moral or physical percep-
tion." -
“We say everything—for physical and material objects are
not alone comprised in it. In fact, just as there are persons of
purely legal creation, so there are things which do not existin
nature, and which law alone has created. Law, by its power
of abstraction, creates things as well as persons. Finally, if
law sometimes raises purely material objects to the rank of per-
sons, it sometimes inversely lowers man to the rank of things;
such, for instance, are slaves, when they are considered as sub-
jected, or as devoted, to the purpose of satisfying the wants of
other men, incapable of being, in the relation of slave to master,
the subject, but the object of rights. l
“If what we have just said about things is compared with
what we have already said about persons, it will be seen at Once
that the two cases are parallel.
“Roman jurists, indeed, have not laid down the definition of
‘things’ in the same wide and philosophical terms that we have
adopted, which include everything which can be the object of a
*ight; not only corporeal things, but also acts, the status of per-
sons in different conditions, and, in general, all rights. Their
ideas were at first directed to regarding things (res) as corpo-
real objects, which, being of some use or other to man, could
form in relation to him the object of a right; but they after-
Wards extended the use of the word so as to make it include
abstract ideas — objects of purely legal conception.” .
From this it will be seen that the Latin scholar who was ac
quainted with the Roman meaning would not have obtained
from reading the words jura personarum and jura rerum any-
thing like the same ideas which Blackstone has ascribed as the
meaning of these words.
“Rights,” says Professor Hammond, “are (by Blackstone)
1 The Declaration of Independence “life, liberty, and the pursuit of hap-
enumerates amonginalienable rights, piness.” .
120 PERSONAL RELATIONS — THINGS — ACTIONS. [$$ 88, 89.
nowhere defined or their nature investigated. It seems as if
he would have dropped the term altogether if he could have
done so without a tedious circumlocution.” "
IBlackstone does, in effect, define property to be “rights such
as a man may acquire over external objects or things uncon-
nected with his person.” -
SEC. 88. The Division of Subjects into Rights and Wrongs
Liscarded.—Hale gives no reason for the division into rights
and wrongs excepting the translation of jura personarum and
jura rerum into rights of persons and rights of things, instead
of law concerning persons and law concerning things. Black-
stone went to great pains in order to prove that this division
into rights and wrongs resulted naturally and necessarily from
the definition of natural law, which is adopted as his definition
of municipal law.
The division of the law as it relates to rights and wrongs,
and again into rights of persons and rights of things, is but a
change in form; the change is merely substituting for actions
that concerning which actions are brought, viz., wrongs, and
translating the Roman word jura, meaning law, into rights.
Going back to the old form by translating jura into law, and
using actions or remedies instead of wrongs, then we find that
the laws of England do concern persons, things, and actions;–
the substitution results from Blackstone's method analyzing
fights instead of law.
SEC. 89. The Agreement and Divergence Between Hale and
JBlackstone.—Blackstone followed Halein something more than
certain actions according to the law
of the land.” Calder v. Bull, 3 Dall.
1 Sanders’ Justinian, Hammond’s
Introduction, p. 50.
Definitions of Rights.- “Jurispru-
dence is specifically concerned with
such rights as are recognized by law
and enforced by the power of the
state. We may therefore define a
‘legal right,” in what we shall here-
after see is the strictest sense of that
term, as a capacity residing in One
man of controlling, with the assent
and assistance of the state, the ac-
tions of others.” Holland's Jur., p. 71.
Chase, Justice, says: “When I say
that a right is vested in a citizen, I
mean that he has the power to do
394.
This definition is quoted by Web-
ster in argument of the Dartmouth
College Case, 4. Wheat. 516.
IFor exhaustive and scientific in-
vestigation of the jural conception
of rights and a right, the student
may consult Smith’s Right and Law
and the Law of Private Law. These
works are small in size, but are:
among the most profound treatises
by authors of our own land.
21 Blk, 122; 2 Blk. 1.
§ 90.]
PERSONAL RELATIONS —THINGS — ACTIONs. 121
a mere matter of form. Hale's treatment of the subject of
rights is as follows: - .
“Cºvil rights are of two sorts—jura personarum, or rights of
persons, and jura rerum, rights of things. Civil rights of per-
sons are such as do either immediately concern the persons them-
Selves, or such as relate to their goods and estates."
Origin of Absolute Rights.- “As to the persons themselves,
they are either persons natural, or persons civil or politic; i.e.,
bodies corporate.
Persons natural are considered two ways: Absolutely,” and
simply in themselves; Or, under some degree or respect of rela-
tion. . .
In persons natural, simply and absolutely” considered, we have
these several considerations, viz.:
The interest which every man has in himself.
Their capacities, or abilities,” which respect their actions.
The interest which every person has in himself principally
consists of three things, viz.:
The interest he has in the safety of his own person; and the
Wrongs which reflect upon that, are assaults, affrays, wound-
ings. \ - -
The interest he has in his liberty or the freedom of his per-
son; the injury whereto is duress and unlawful imprisonment.
The interest he has in his name and reputation; the injury
whereto is scandal and defamation.
As to the other interest of goods and estate, though in truth
they have a habitude, and are under some respect to the per-
son, yet, because they are in their own nature things separate
and distinct from the person, they will more properly come in
under jura rerum." ~
SEC. 90. Lord Hale's Treatment of Status.--The capacity
that every person has, which is a power that the law variously
assigns to person, according to the variety of certain conditions
or circumstances, wherein they are, either to take Or to dispose.
1 Hale's Analysis, sec. 1.
2This is not saying that the per-
Sons are absolute, or that the rights
are absolute, but it throws light
upon how Hale uses the word “ab-
solute,” and this is the only reason
for Blackstone's absolute rights. He
might as well have said absolute per-
Sons or things as absolute rights.
See post, Ch. 4.
3 This is the same as status.
4 This is the keynote to the classifi-
cation, “Rights of persons and rights
of things.” *
122 PERSONAL RELATIONS — THINGS — ACTIONS. [$ 91.
And under this head we have —
Fºrst, the capacities themselves, which are especially two:
Capacities which a man has in his own right.
Capacities which he has in auter droit, or another's right.
Now, capacities which a man has in his own right are,
either —
To acquire or take.
To alien or transfer.
And both these are either—
Of things personal.
Of things real.
The second kind of capacities are in auter droit, in another
right; as executors, corporations, cestuy gue use, etc., whereof
hereafter.
The various conditions or circumstances of persons with re-
lation to those capacities, consisting of —
Ability.
Non-ability.
And all persons are presumed in law able in either of those
capacities of taking or disposing who by law are not disabled;
and those that are so disabled come under the title of non-abil-
ity, though that non-ability is various in its extent, viz.: to
some more, to some less, as in the several instances following:
Aliens; here comes in the learning of aliens, as naturali-
Zation, denization, etc. *
Attainted of treason or felony; here of attainders.
Persons outlawed in personal actions.
Jnfants; here of the non-ability of infants.
JFeme coverts; here of their disability.
Jalºofs and lunatics; here of that learning.
Persons under some illegal restraint or force, as duress,
madness.
Willeins (now antiquated).
Bastards; and here of legitimation.”
SEC. 91. Lord Hale's Conception of “Things.”—Again at sec-
tion 23, the title of which is “Concerning the jura rerum,” he
says: “And although the connection of things to persons has in
the former part of these distributions given occasion to men-
tion many of those jura rerum as particularly annexed to the
1 Hale's Analysis, sec. 1.
$$ 92, 93.] PERSONAL RELATIONS – THINGs — ACTIONs. 193
sonsideration of persons under their several relations, yet I
imust again resume many of them, or at least refer unto them;
and this without any just blame of tautology, because there
they are considered only as incidental and relatively; but here
they are considered absolutely—in their own nature or kind,-
and with relation to themselves, or in their own nature, and
the several interests in them, and transactions of them.”
Obviously Hale's treatment does not warrant the criticism that
he ascribed rights to things. He plainly says: “Civil rights of
persons are such as do concern the persons themselves or such
as relate to their goods and estates.”* This leads one to believe
that Professor Austin did not diligently endeavor to ascribe a
reasonable meaning to the treatment of the subject by Hale as
followed by Blackstone.
SEC. 92. Substantial Difference Between Hale and Black-
stone.—The difference, in substance, between Hale and Black-
stone’s treatment and the treatment of the same matter in the
Roman law consists in this: that inasmuch as all objects of
rights, tangible or intangible, which the law protected, were
under the Roman system “things,” and consequently would
fall under the jura rerum or law of things, Hale and Black-
stone transferred from the law of things to the law of persons
all such rights as do immediately concern persons themselves,
and left under the rights of things interests of persons in goods
and estates, and obligations from others, because they are in
their own nature things separate and distinct from the person,
as put by Hale, or external objects unconnected with the per-
son, as put by Blackstone. -
SEC. 93. The English Conception of These Words. – Dr.
IHammond says: “And if our belief as to Blackstone's true
meaning and method be the correct one, he could finally have
informed Mr. Austin that what he proposed to do in the Com-
mentaries was to transfer to the law of persons, or to locate in
the proper place among the rights of persons, all such rights
(and duties) as belonged to all persons alike, except such as had
for their object ‘external things unconnected with the person.”
“This last is in truth the cardinal point of the whole matter.
Blackstone adopts (he should have said, from Hale) as his defi-
nition of a ‘thing,” one quite different from that employed by
1 Hale's Analysis, Sec. 1.
124 PERSONAL RELATIONS — THINGS — ACTIONS. [$ 94.
the classical jurists; and all the departure from civilian prece-
dent that can fairly be charged to him depends on, and is to
be explained by, this changed sense in which he uses the word
‘thing.’” I
Blackstone's use of the word “thing,” if we have attended
his language, is “easternal objects unconnected with the person.”
These objects are not always tangible, as we shall see later,
though they were termed personal property or choses in action.
Dr. Hammond says: “Things are objects of rights, and,
since Blackstone’s time, the term has been confined in our law
to external things unconnected with the person, such as land,
chattels personal, etc.”.”
This is misleading, perhaps, in ascribing those changes to
Blackstone. Dr. Hammond continues: “Prior to Blackstone's
time the term ‘things” had a much wider comprehension; it
was identical with the objects of a right, whether that object
had a tangible existence or not. Health, liberty, reputation
were things in this sense; and even the indefinite imaginary
objects of obligations, having no real existence, were also in-
cluded under the term.” "
Dr. Hammond is not accurate as to the time when this
change in the meaning took place. One would suppose that
Blackstone ascribed a new meaning to the words “persons”
and “things,” and recast the law of England in conformity
there with, whereas he only followed Hale in the use of these
terms, and in so doing has received some criticism; and it
would seem but fair for a person living in a later age to pre-
sume that Hale ascribed to these words a meaning which was
natural and in conformity with the English use of terms. We
are not, however, left to a matter of presumption.
SEO. 94. The Word “Chose ’’ Unknown in Roman. Nomen-
clature.—It is only necessary to examine the Commentaries
of Blackstone and to remember the prior history of English
law to understand that by including under the term “things”
only those objects of rights which were denominated in the
English law either real estate, chattels or choses in action,
Hale and Blackstone did no violence to the vernacular of Eng-
land. The word chose was a French (or Norman-French) word,
1 Sanders’ Justinian, Introduction 2 Hammond’s Blk., 332, note.
by Hammond, pp. 55, 56. 3 Id. See next chapter.
§ 95.]
IPERSONAL RELATIONS — THINGS — ACTIONS. 125
and, though its derivation is from the Latin causa or thing, its
meaning corresponded to the things personal, in possession and
in action as used by Hale and Blackstone. Undoubtedly, this
is one of the ideas which grew out of the Norman-French Oc-
cupation of England which was inaugurated by William the
Conqueror." When we contemplate lands and chattels, and
then add to it what was embraced within the word chose in
possession and chose in action, you have bounded the objects
included by the word “things” in English law.
A chose in action was a right to receive or recover a debt, or
money or damages for a breach of contract, or for a tort con-
nected with a contract or connected with chattel property.”
SEC. 95. The American Idea of a Right.—As it has been as-
serted that Blackstone has nowhere defined rights or property,
it will be well for us to arrive at the meaning of these two
words. We have seen the definition of Holland that “a legal
right is a capacity resting in One man of controlling, with the
assent and assistance of the state, the actions of others.””
But inasmuch as the conflict may be between the state and
the person, this definition will hardly do in American juris-
prudence.
The state is not the controlling force in our theory
1 See 1 Schouler, Personal Prop.
(2d ed.), § 11. -
2See 1 Wilson’s Works, 46; Bou-
vier's Dictionary; Gillett v. Fairchild,
4 Denio, 80; 2 Kent, Com. 351. “The
term “chose in action’ is one of com-
prehensive import. It includes the
infinite variety of contracts, cove-
nants and promises which confer on
one party a right to recover a per-
sonal chattel or a sum of money from
another by action. It is true, a deed
or title for land does not come within
this description. And it is true, also,
that a mortgagee may avail himself
of his legal title to recover in eject-
ment in a court of law. Yet even
there he is considered as having but
a chattel interest, while the mort-
gagor is treated as the true owner.”
Sheldon v. Sill, 8 How. (U.S.) 449,450.
“Blackstone seems to have enter-
tained the opinion that the term
chose, or thing in action, only in-
cluded debts due, or damages recov-
erable for the breach of contract, ex-
press or implied. (2 Blk. Com. 388,
396, 397.) But this definition is too
limited. The term chose in action.
is used in contradistinction to chose
in possession. It includes all rights
to personal property not in possession
which may be enforced by action;
and it makes no difference whether
the owner has been deprived of his
property by the tortious act of an-
other, or by his breach of contract,
express or implied. In both cases,
the debt or damages of the owner is
a ‘thing in action.” (2 Kent, 351; 1
Chit. G. P., p. 99, note; Tomlins' L. D.,
‘Chose; ” The King v. Capper, 5 Price,
217; 1 Lilly, Ab. 378.)” Gillett v.
Fairchild, 4 Den, 80–82.
3 Holland's Jur. 71.
126 IPERSONAL RELATIONS — THINGS — ACTIONS.
[$ 96.
of jurisprudence; it is but one of the persons having and owing
rights. We claim to have a government of law, not of men.
Perhaps the definition given by Justice Cushing, with Judge
Kent’s addition, comes as near being correct as anything to be
found: “When I say that a right is vested in a citizen, I mean
that he has the power to do certain actions or to possess certain
things according to the law of the land.” Kent adds, “ or to
require from others.”
SEC. 96. “Property.” Defined.—The word “property,” al-
though in common parlance frequently applied to a tract of
land or a chattel, in its legal signification means only the rights
of the owner in relation to it. It denotes a right over a deter-
minate thing. Property is the right of any person to possess,
use, enjoy and dispose of a thing.” The term “property” is
often used to indicate the res, or subject of the property, rather
than the property itself; but this is not its proper legal sense."
l Calder v. Bull, 3 Dall. 386.
21 Kent, Com. 549; Wynehamer v.
Deople, 13 N. Y. 378, 433.
3 Rigney v. Chicago, 102 Ill. 77;
Austin’s Jur. 817.
4 Eaton v. B. C. & M. Ry, 51 N. H.
504; S. C., 12 Am. Rep. 147.
Property.— John Marshall (after-
wards chief justice of the Supreme
Court of the United States), speak-
ing of the legal conception of prop-
erty, said: “It is not necessary to
inquire how the judicial authority
should act, if the legislature were
evidently to violate any of the laws
of God; but property is the creature
of civil society, and subject in all
respects to the disposition and con-
trol of civil institutions. . . . It
must be repeated, that the law of
property in its origin and operation
is the offspring of the social state,
not incident of a state of nature.”
Argument, Ware v. Hylton, 3 Dall.
211.
National Supreme Court. – “The
words ‘life, liberty and property' are
constitutional terms, and are to be
taken in their broadest sense. They
indicate the three great subdivisions
of all civil rights. The term ‘prop-
erty’ in this clause embraces all val-
uable interests which a man may
possess outside of himself, that is to
say, outside of his life and liberty.
It is not confined to mere technical
property, but extends to every species
of vested right.” Camp v. Holt, 115
TT. S. 620; Board of Education v. Blod-
gett, 155 Ill. 441.
The New York Court of Appeals.-
“Now I can form no notion of prop-
erty which does not include the es-
sential characteristics and attributes
with which it is clothed by the laws
of Society. In a state of nature, prop-
erty did not exist at all. “Every .
man might then take to his own use
what he pleased, and retain it if he
had sufficient power; but when men
entered into society, and industry,
arts and sciences were introduced,
property was gained by various
means, for the securing whereof
proper laws were ordained.’ Tom-
lins' Law Dict., Property; 2 Blk. Com.
34. Material objects, therefore, are
property in the true sense, because
they are impressed by the laws and
usages of society with certain quali-
§ 96.]
PERSONAL RELATIONS — THINGS — ACTIONS. 127
Horses and cattle and land were created by nature. “Prop-
erty,’” strictly speaking, is an artificial conception of man.
“It seems to me,” says Justice Cushing, “that the right of
property in its origin could only arise from compact empress or
Żmplied, and I think it the better opinion that the right as well
as the mode or manner of acquiring property, and of alienating
or transferring, inheriting or transmitting it, is conferred by
society; it is regulated by civil institutions, and is always sub-
ject to the rules prescribed by positive law."
ties, among which are, fundamen-
tally, the right of the Occupant to use
and enjoy them exclusively, and his
absolute power to sell and dispose of
them; and as property consists in the
artificial impression of these qualities
upon material things, so whatever
removes the impression destroys the
notion of property, although the
things themselves may remain phys-
ically untouched.” Wynehamer v.
The People, 13 N. Y. 396.
Illinois Supreme Court.—“Property
in its broadest and most comprehen-
sive sense includes all rights and in-
terest in real and personal property,
and also in easements, franchises
and incorporeal hereditaments. That
which may be taken for public uses
is not exclusively tangible property.”
Met. City. Ry. Co. v. Chicago W. D.
Ry. Co., 87 III. 324.
“Property, in its appropriate sense,
means that dominion or indefinite
right of user and disposition which
One may lawfully exercise over par-
ticular things or subjects, and gen-
erally to the exclusion of all others,
and doubtless this is substantially
the sense in which it is used in the
constitution; yet the term is often
used to indicate the res or subject of
property, rather than the property
itself, and it is evidently used in this
Sense in some of the cases in connec-
tion with the expression ‘physical
injury,’ while at other times it is
probably used in its more appropri-
ate sense, as above mentioned.” Rig-
ney v. Chicago, 102 Ill. 77.
New Hampshire Supreme Court.—
“In strict legal sense, land is not.
‘property,’ but the subject of prop-
erty. The term ‘property,’ although
in Common parlance frequently ap-
plied to a tract of land or a chattel,
in its legal signification “means only
the rights of the owner in relation to
it.” “It denotes a right . OVer
a determinate thing.’ ‘Property is.
the right of any person to possess,
use, enjoy and dispose of a thing.’
Selden, J., in Wynehamer v. People,
13 N. Y. 378, 433; 1 Blk. Com. 138; 2.
Austin’s Jur. (3d ed.) 817, 818.
“If property in land consists in cer-
tain essential rights, and a physical
interference with the land substan-
tially subverts one of those rights,
such interference ‘takes,” pro tanto,
the owner’s “property.” The right.
of indefinite user (or of using indefi-
nitely) is an essential quality Or at-
tribute of absolute property, without
which absolute property can have no
legal existence. ‘Use is the real side
of property.’” Eaton v. Boston, Con-
cord & Montreal R. R., 51 N. H. 504;
S. C., 12 Am. Rep. 151.
Missouri Supreme Court.—A man.
may be said to have a special prop-
erty in his possession or calling by
means of which he makes his sup-
port, and he can be deprived of it.
only by due process of law. Blair v.
Ridgely, 41 Mo. 173; 97 Am. Dec. 248.
l Calder v. Bull, 3 Dall. 386,
128 IPERSONAL RELATIONS - THINGS — ACTIONS. [$97.
SEC. 97. Concluding Observations.—We have now seen the
meaning of the words “law'” and “rights,” and that rights
are creations of law. We have also seen that the words “per-
son’’ and “thing” and “property” have each, in legal parlance,
a meaning different from the meaning often ascribed to them.
in common parlance. “Person’’ is to be distinguished from
“man” and “individual,” though including them. “Prop-
erty” is not at all synonymous with “things,” but relates to
the right or interest in them; and the word “thing,” in English
and American jurisprudence, has a meaning broader than the
common use of the word “thing,” and narrower than the Roman
use of the WOrd “res.”
In our jurisprudence it included those objects which were
denominated choses in action, and excluded all rights of a purely
personal nature. Blackstone's description of property, and his
treatment of it, correspond very nearly to the notions as they
obtained in England in his day. He clearly indicates that he
does not treat a horse, or land, or a chose, as property, but as
the subjects of property.
CHAPTER W.
RIGHTS, OBLIGATIONS AND REMEDIES.
SEC. 98. Complex State of the Subject.—In the preceding
chapter an endeavor was made to present the legal conception
of the terms which designate the three departments into which
the Roman jurists divided the great body of the civil law —
Aperson, thing, action.
The changed meaning ascribed to the same expressions by
English jurists is there also pointed out, and it is shown that
subjects are by the latter transferred from one department of
law to another, according to the differing conception of these
Words.
In the course of that discussion the word “right” was de-
fined, and the word “obligation” mentioned in connection with
the Roman distribution of rights of persons. -
The word chose was also introduced as a word adopted into
the English law from a source other than the Roman law, and
that these were divided into choses in possession and choses in
action. -
The English conception of these words, quite different from
the meaning ascribed to them in the Roman law, resulted in
radical departures in formal arrangement of English treatises.
The adoption of a new classification of certain rights under
the designation choses in possession and choses in action, and the
subordination of one of the great departments of the Roman clas-
sification, viz., obligation, brought about radical changes in the
nomenclature. -
New conceptions of the nature of property, ownership or
dominion, with the use of the expressions real and personal
property to designate respectively rights in land and in mov-
able things and choses, rendered the expression of the English
1 “A vested cause of action is prop- interference. Where it (the cause of
erty, in the same sense in which tan- action) springs from contract or from
gible things are property, and is the principle of the common law, it is
equally protected against arbitrary not competent for the legislature to
9
130 RIGHTS, OBLIGATIONS AND REMEDIES.
[š 99.
law by the English jurists, who uniformly persist in making use
of words borrowed from the civil law with an entirely new
meaning, simply distracting to a civilian, and only intelligible
to an English reader by the use of labored qualifying phrases.
The American student encounters all of these difficulties and
others in addition, occasioned by reason of new elements in-
troduced and still further changes and variations in the mean-
ing of old words.
It will perhaps facilitate the understanding of the nature
and classification of rights and obligations to present briefly
the ancient meaning and classification of these words in the
systems whence they are derived.
In the last chapter we saw that Blackstone translated jura,
personarum rights of persons, and jura rerum rights of things.
To these words he added the qualifying phrases, segregating
rights into two primary classes: Those “connected with the
persons of men’’ and those “unconnected with his person.”
All the changes from civilian methods result from these
changes—the perverted use of person and the new conception
of res."
SEC. 99. Remedies to Protect and Enforce are Essential
Parts of the Definition of Right and Obligation.—Before pro-
ceeding with the treatment of these words it will be wise to
take it away.” Cooley's Const. Lim.,
443, quoted in Board of Education v.
Blodgett, 155 Ill. 441. -
1 “The student of the Institutes
will hardly need to be informed that
in the classical jurists, and among
civilians generally (until within the
last century), the term res and the
term “object of a right’ are strictly
synonymous. No right could be con-
ceived the object of which might
not be designated res. The right of
a man to Security, to liberty, to rep-
utation, to health, had for the object
of each, respectively, a ‘thing’—
res — although that ‘thing” was
merely the right itself, so to speak,
objectified. Hence these rights, as
well as any others, could be included
among the jura rerum — rights con-
sidered in reference to their objects;
they gave rise to actions in rem, and
they are excluded from the jus per-
Sonarum, which was reserved for
rights appropriated to some partic-
ular class of persons. Blackstone,
however, changed this by adding to
the word thing the further limitation,
‘unconnected with the person.” All his
Other changes are mere consequences
of this. It is evident that security,
liberty, reputation, health, the body,
limbs, life itself, are all so connected
with the person that they cannot be
treated as ‘things’ under this new
definition. The right to the safe en-
joyment of all these is still, as much
as ever, a right against all persons
whatsoever. It is a jus in rem, if you
please, but it certainly is no longer a
jus rerum. There is but one alter-
native, and that is to place these
§ 99.] RIGHTS, OBLIGATIONS AND REMEDIES. 131
refer again to the meaning of right and obligation. A right
was defined to be the capacity to do or have, or to compel others
to do or refrain from doing."
Now, an obligation is the duty resting upon the party from
whom some action is due, together with the vinculum jus, the
binding tie of the law. The duty may be simply a moral obli-
gation, but the obligation which the law recognizes is some-
thing more tangible; it is the artificial or civil obligation.
All rights and obligations are included within the terms
person, thing, and action.
The distinction between right and obligation, and the classi-
fication of rights herein pointed out, has a very material in-
fluence upon the classification of actions or remedies.
It should be observed that the protected right, and the en-
forced Obligation, are the efficacious ones, and that the element
of “capacity to enforce, with the aid of the law,” is an essen-
tial element in the definition of a legal right. In other words,
the remedy to enforce and protect is an essential part of a
right, and the power to enforce is the obliging part of an obli-
gation.
The Supreme court of the United States has declared: “Noth-
ing, in short, can be more clear, upon the principles of law and
reason, than that a law which denies to the owner of land a
remedy to recover the possession of it when withheld by any
person, however innocently he may have obtained it, or to re-
cover the profits received from it by the occupant, or which
clogs his recovery of such possession and profits by conditions
and restrictions tending to diminish the value and amount of
the thing recovered, impairs his right to, and interest in, the
property. If there be no remedy to recover the possession, the
law necessarily presumes a want of right to it. If the remedy
afforded be qualified and restrained by conditions of any kind,
the right of the owner may indeed subsist and be acknowledged,
but it is impaired and rendered insecure, according to the nat-
ure and extent of such restrictions.”
In another case Justice Taney quotes the language used in
Green v. Biddle and adds: “And no one, we presume, would say
right where, under Blackstone's defi- 1 Amte, p. 120, note.
nition, they properly belong—with 2 Green v. Biddle, 8 Wheat. 75.
the other rights of persons.” Ham-
mond's Int, to Sanders’ Justinian, lvi.
132 RIGHTS, OBLIGATIONS AND REMEDIES.
[$ 100.
that there is any substantial difference between a retrospective
law declaring a particular contract or class of contracts to be
abrogated and void, and one which took away all remedy to
enforce them, or incumbered it with conditions that rendered
Žt useless or impracticable to pursue it. Dlackstone, in his Com-
mentaries on the Laws of England (vol. 1, p. 55), after having
treated of the declaratory and directory parts of the law, de-
fines the remedial in the following words: ‘The remedial part
of the law is so necessary a consequence of the former two,
that laws must be very vague and imperfect without it. For
in vain would rights be declared, in vain directed to be observed,
if there were no method of recovering and asserting those rights
when wrongfully withheld or invaded. This is what we mean
properly when we speak of the protection of the law.” We
have quoted the entire paragraph, because it shows in a few
plain words, and illustrates by a familiar example, the connec-
tion of the remedy with the right. It is the part of the munici-
pal law which protects the right and the obligation by which
it enforces and maintains it. It is this protection which the
clause in the constitution now in question mainly intended to
secure. And it would be unjust to the memory of the distin-
guished men who framed it, to suppose that it was designed to
protect a mere barren and abstract right without any practical
operation upon the business of life.”"
SEC. 100. The Classification by Civilians of Rights as Real
and Personal.—We are obliged now to notice the same word
“jus” in its other signification, meaning rights; and it may be
said by way of encouragement to students that it is not to be
expected that a clear comprehension will be obtained of this
intricate subject at a single perusal. A matter of this nature
requires study and thought. .
ORTOLAN’s PRESENTATION OF REAL AND PERSONAL RIGHTS.”—
J’ersonal Rights; Real Rights (a Classification Not Adopted in
the Roman Jaw).”—Right is any faculty that a person has to
do, to omit, or to exact something.
1 Bronson v. Kinzie, 1 How. 317.
* Ortolan’s Hist. Rom. Law, 647,
648, 650, 651, 652, 653. In the case of
institutional treatise best serves his
reader by exact quotation, rather
than by garbled paraphrase. The
extracts from Ortolan’s writings no
apology is necessary for indulging
in copious quotations; but there are
many cases where an author of an
duty of the honest author is fair use
and frank acknowledgment.
3 Nor are they adopted in English
or American law.
§ 100.] RIGHTS, OBLIGATIONS AND REMEDIES. 133
Roman jurisprudence did not recognize any general division
of rights. That which is now commonly received, however,
though not belonging to, was derived from Roman law.
Bights are divided into personal and real rights.
We accept this division because it is exact, provided it is
Well defined.
Jalea of Personal and of Jęeal Jºights.-Leaving for a mo-
ment Roman traditions, if we confine ourselves to pure reason,
the following notions appear to be forced upon us:
No right exists except from One person to another; every
right has therefore, necessarily, one active subject, and one or
more passive subjects; which, whether active or passive, can
only be persons. In that respect all rights are therefore per-
Sonal. ->
Every right, besides the active and passive subject, has more-
Over, and necessarily, an object, which, in its widest sense, is
designated a thing. Every right has, therefore, a thing for its
object; and, in that respect, every right is real."
Therefore every right, without any exception, is at once per-
Sonal as to its active as well as passive subject, and real as to
its object. -
But the mode in which persons as subject, active or passive,
or things as object, can appear and act in the right, assumes
two very distinct phases. *
The Relation of Right and Obligation.—Every right, if we
go to principles, is summed up in the faculty which the active
subject has to exact something from the passive subject. Now,
the only thing which it is possible immediately to exact from
a person is that that person should do or abstain from doing
Something; that is to say, action or inaction. It is to this that
every right is reduced. This necessity for the passive subject
to do or to abstain from doing something is what is called, in
legal language, an obligation.
Every right, therefore, without exception, if we go to prin-
ciples, consists in obligations.”
*These distinctions are important This word “obligation” had an
because they determine whether the importance in Roman jurisprudence
vindication of the right shall be by far above the same word in English
an action in personam or an action law. In the former it was the foun-
ºn rem; hence the occasion for the dation of every right in personam;
Care in explanation at this point. in the latter the word was of tech-
134 RIGHTS, OBLIGATIONS AND REMEDIES. [$ 101.
To sum up, a personal right is that in which a person is indi-
vidually the passive subject of it. §
A real right is that in which no person is individually the
passive subject of the right.
Or, in other terms, a personal right is that which gives the
faculty of individually obliging another to do or to abstain
from doing something.
A real right is that which gives the faculty of deriving ad-
vantage from a thing." -
In both cases we may leave out of the question the commu-
mity in general, bound to non-interference.” ſº
The definition thus given is wide. All rights, without any
exception, in whatever manner they may be acquired, exer-
cised or sued for at law, and whatever may be the corporeal
or the incorporeal thing which is the object of them, come
under one category or the other.
It is not an arbitrary definition, but one which necessarily
emanates from the nature of things; it is subject to no change,
and reproduces itself inevitably in every legislation. [He means
every system of law designations.]
SEC. 101. Various Denominations of Real Rights and of Per-
sonal Rights.-Jus in re, the expression for real rights, and jus
ad rem for personal rights, are barbarous expressions intro-
duced in the middle ages, and which have never belonged to
the language of Roman law. The former already appears in
the Brachylogus, the summary of the law of Justinian com-
piled in Lombardy in the twelfth century. Both are to be
met with in the thirteenth century, opposed to each other in
the papal constitutions; and it is from the canon law that they
seemed to have passed into secular jurisprudence. We must
rid our judicial language of it.”
nical import and meant a particular
species of contract. By reason of the
constitutional provision prohibiting
any state from passing any law im-
pairing the obligation of a contract,
this word has attained an impor-
tance greater than it ever before
had. See post, p. 141.
gation of a contract would be a
“thing” in that sense.
* Like all generalities, like many
such indulged in by theoretical
writers, this must not be taken too
implicitly. The community is not al-
ways bound to non-interference. A
striking example is Louisiana v. New
1. By exercising dominion over it.
This word “thing” is here used in
the very broadest sense. The obli-
Orleans, 109 U. S. 285.
3 This is simply an impossibility.
We must accept the language of the
§ 102.] RIGHTS, OBLIGATIONS AND REMEDIES. 135
Jus in ſeem and Jus in Personam not of Roman Origin.—The
expressions jus in rem for real rights, and jus in personam for
personal rights, framed after the model of some analogous ex-
pressions of Roman law, do not, any more than the preceding,
really belong to it.
Absolute and Relative Rights."—This is a philosophic division
altogether foreign to Roman jurisprudence. It is certainly
more rational than the last; but it is equally objectionable,
because it seems to imply the idea that absolute right exists
with regard to everybody, whilst the personal or relative right
only exists with regard to persons the passive subjects of this
right. Every right, from the moment it exists, exists with re-
spect to all, and must be protected, if needs be, against all.
Only, in the case of real rights, no person whatever is individ-
ually the passive subject of them; whilst, in the case of per-
sonal rights, a person is individually the passive subject of
them. • -
But, in conclusion, we desire to point out that these expres-
sions are both equally foreign to the law of the Tomans, and
that in this law no such general division was ever made nor
had it any place in their system. -
SEC. 102. Same Subject—John Austin's Presentation.—
“Jus Peale sive Jura Realia’’ et “Jus Personale sive Jura.
Personalia: ” In the language of modern civilians, and in the
language of the various systems which are offsets from the
Roman law, rights availing against persons universally or gen-
erally, and rights availing against persons certain or determinate,
are not infrequently denoted by the distinctive names of “jus
zeale” and “jus personale; ” the adjective reale being substi-
tuted for “in rem,” and the adjective personale for “in per-
Sonam.” -
These expressions are so ambiguous that the following cau-
tions may be useful to the student:
1. “Jus reale” and “jus personale,” which signifies rights in
Tem, and rights in personam, must not be confounded with “jus
rerum,” and “jus personarum; ” i.e., “ law of things” and “law
of persons.”
law and endeavor to master the mean now almost the opposite of
meaning of it. These expressions are their former meaning.
in our law to stay, although they 1 See next chapter.
136 RIGHTS, OBLIGATIONS AND REMEDIES.
[š 102.
2. The distinction of the civilians between real and personal
rights must not be confounded with the distinction of the Eng-
lish lawyers between real property or interests and personal
property or interests. Real rights (in the sense of the English
lawyers) comprise rights which are personal as well as rights
which are real (in the sense of the civilians); and personal rights
(in the sense of the former) embrace rights which are real as
well as rights which are personal (in the sense of the latter).
The Distinction is an Essential One.—The difference be-
tween real and personal (as the terms are understood by the
civilians) is essential and necessary. It runs through the Eng-
lish law just as it pervades the Roman, although it is obscured
in the English by that crowd of gratuitous distinctions which
darken and disgrace the system. But the difference between
zeal and personal (in the sense of the English lawyers) is acci-
dental." In the Roman law there is not the faintest trace of it.
3. In the sense of the civilians, “jus personale” signifies
any right which avails against a person certain or against
persons certain. In the English law “personal * sometimes
signifies a sort or species of such rights, viz.: those rights of
action, which, in the language of the Roman lawyers, “nee
heredibus nec in heredes competunt,” which neither pass to the
persons who represent the injured parties, nor avail against the
persons who represent the injuring parties. Being limited to
parties who are directly affected by wrong, and only availing
against parties who are authors of wrong, these rights of action
are styled by English lawyers personal, or (more properly)
they are said to empire (or to be eactinguished) with the persons.
of the injured or injuring.
“Actio personalis moritur cum persona ’’” is a rule or maxim
applied to the rights in question. But, like a thousand phrases.
dignified with the name of maxims, this wretched saw is a
purely identical proposition. For a personal action (as the
it quick or dead. Old Law-French
Dic., by F. O., 1701. That is to say,
1 Personal, personalis, le, adj. It
hath in our common law one strange
signification, being joined with the
substantive, things, goods or chat-
tels, as things personal, goods per-
sonal, chattels personal; for thus it
signifieth any corporeal and mova-
ble thing belonging to any man, be
land is no more real than a horse; it
is no more property than is a chattel;
in fact, not so much in the English.
law.
2 Bro. Max. 904.
§ 103.] RIGHTS, OBLIGATIONS AND REMEDIES. 13'ſ
term is here understood) means a right of action which expires
or is extinguished with the party." -
SEC. 103. Rights and Obligations Not Generic Terms in Eng-
lish and American Law.—In the preceding chapter great pains
was taken to explain the meaning of Blackstone’s division of
rights, as those which concern and are annexed to the persons
of men, and such as men may acquire under external things
unconnected with his person,” and we have just shown that
these conceptions are peculiar to English jurisprudence.
Attention was called to the fact that an intangible object
might still be the object of a right, and such, as we pointed
out, was the case of the word chose.” We shall see other in-
tangible rights besides choses.
To the English lawyers all classes of rights were either polit-
ical rights, as magistrate and people, or fell within the compass
of domestic relations, or they were rights to real property, per-
sonal security, or private property. These latter Blackstone
classes under the head of absolute rights. -
This classification and the designation of certain rights as ab-
solute has had such an intimate association and so wide an influ-
ence in American law that it is imperative that we examine and
accept or reject it before the subject of rights and obligations
in American law can be properly understood and expressed.
But, before we proceed with this examination, attention may be
directed to a distinction between different classes of rights so
obvious and natural that even the beginner may easily grasp
it, by applying his reason to his every-day observation.
The subject of property, ownership and dominion is so ap-
parent and prevalent as to obtrude itself upon the view of
every one. In daily life we see the exercise of dominion over
land, the control of tangible chattels, and the display of own-
ership of intangible choses, such as stocks, bonds, Warehouse
receipts, and the enforcement of promises made by One man to
another, or agreements made by one man with another.
Now it is plain that ownership or dominion of property differs
in its nature from the contracts or agreements we have spoken of.
The distinction between the two is in the nature of the ob-
ligation incumbent upon third persons in reference thereto.
1 2 Austin’s Jur., pp. 1011–13. 3 Ante, Sec. 94.
2 Ante, pp. 108–123.
3.38 RIGHTS, OBLIGATIONS AND REMEDIES. [$ 103.
Tight of ownership is in and to a definite, detorminate thing,
tangible or intangible. The obligation of third persons as to
One’s property applies equally to all persons. In the case of
contracts or agreements, the obligation rests primarily upon a
certain determinate person or aggregation of persons. But
rights against a certain determinate person may arise inde-
pendent of contract, viz.: by unlawful conduct towards or treat-
ment of one person by another. These are called delicts by the
Roman jurists, and torts by the Norman-French jurists, and
consequently we have in the English law the actions ea delicto,
based upon conduct passing under the generic term tort. These
transactions which give rise to contracts or agreements as well
as conduct which gives rise to an obligation to respond in dam-
ages are all between certain determinate persons.
Anomalous Obligation.— There are obligations which arise
from a combination of transaction and action or conduct; for ex-
ample, the breach of a contract may be accompanied with such
conduct as to partake of the nature of a tort, or a tort may occur
under such circumstances and in relation to the property of an-
other as to enable the person injured to select what deduction he
shall draw from the whole circumstance. The wrong connected
with a contractor some fiduciary relation is quasi ea contractu and
quasi ea delicto." This results from the co-operation of act, con-
duct and law, and a character is affixed by the use of what are
called fictions; and it is sometimes said that the law, by the use
of fictions, creates rights and imposes obligations. The idea
of creation seems less applicable to the process than the term
usually employed, that the law “implies” the contract, because
the latter term allows the implication to arise from the acts or
conduct of the party.” -
I “There are kindred principles in
equity jurisprudence, whence indeed
these rules of the common law seem
to have been derived. Where a
trustee has abused his trust in the
same manner, the cestwi gue trust has
the option to take the original or sub-
stituted property; and if either has
passed into the hands of a boma fide
purchaser without notice, then its
value in money. If the trust prop-
erty comes back into the hands of
the trustee, that fact does not affect
the rights of the cestwº gue trust.
The cardinal principle is that the
wrong-doer shall derive no benefit
from his wrong. The entire profits
belong to the cestºwi gue trust, and
equity will so mould and apply the
remedy as to give them to him.”
May v. Le Claire, 11 Wall. 236; Bro.
Max. 279.
2 Central Bridge Corp. v. Abbott, 4
Cush. 473.
§ 103.] RIGHTS, OBLIGATIONS AND REMEDIES. 139
Other obligations arise without any immediate act, contract
or conduct, merely from the fact of the existence of persons in
relation to each other. -
These give rise to rights of one person over or against some
other definite person and also against all the world; e.g., the
husband and wife by the marriage acquire such rights. So do
parent and child. Again, by the death of one or the other,
rights and Obligations, new in their nature, arise, allindependent
of contract or tort (ea, mero jure) by mere force of law. These
may be property rights by inheritance, or a right of an anoma-
lous nature, e. g., the right of support and protection," or it
may be a mere personal right, or, as Hale terms it, the interest
One has in his own person, the obligation to respect which rests
upon all persons alike, and upon no definite specific person. In
such a case the public or the law (formerly the sovereign) as-
sumes the position of authority, and acts in the matter as a par-
ent or one having a superior position would act if in existence
or acting as parens patria, the father of the whole country.”
It will be observed that the obligation attendant upon all of
these rights is distinguishable, on account of the orbit of per-
sons upon whom it rests, into two classes. The first, some par-
ticular person or set of persons; the Second, the community at
large, and no more upon One than upon all.
The real rights—first spoken of obtained against all.
The personal right against particular persons. -
The jus in rem corresponds to the first; the jus in personam,
to the second.”
and politic.”
Ill. 547.
1 “The right of the wife to support Phelps v. Phelps, 72
during marriage is not an interest,
strictly speaking, in the property of
her husband. It is a benefit arising
out of the marital relation by im-
plication of law. Treating the pro-
vision which the law makes for the
widow and the children residing
with her, by the allowance of specific
articles of property, as a means of
Support, it cannot be said to be an
interest in the property itself of the
husband. It comes within no defini-
tion of property. It is a benefit cre-
ated in their favor by positive law,
and adopted for reasons deemed wise
2 Aymar v. Roff, 3 John. Ch. 49.
“We also understand that, in theory
of law, the state, in its character of
paren's patrice, may rightfully exer-
cise the same power and control
over the persons and property of
lunatics and idiots that was exercised
by the Crown of England through
the Lord Chancellor at the period
referred to.” Dodge v. Cole, 97 Ill.
354.
3 “The phrase in rem denotes the
compass and not the subject of the
right. It denotes that the right in
,140 RIGHTS, OBLIGATIONS AND REMEDIES. [$ 104.
The classification had no reference to that about which the
right existed, that is to say, the object of the right, whether it
be land or contract, tangible or intangible.
It is now sufficiently plain that the classification of rights as
real and personal, or ad rem and ad in personam certam, was not
made the basis of any division of subjects in legal classification,
although it points out a natural distinction between classes of
rights. It is also clear that it does not obtain as a basis of
classification in English or American law. Our separation is
of the objects of rights rather than of the rights themselves.
SEC. 104. Right and Obligation Correlative Terms; a Right
is a Possession; an Obligation is a Burden.—In the Roman
law obligation was a generic word embracing in its scope
several species, distinguished from each other by the manner in
which they arose. The first class arose out of transactions be-
tween persons, which gave rise to contracts express or implied.
The second class arose from conduct inimical to the rights of
another, and gave rise to what we term wrongs or torts. In
the English law, obligation was degraded from its position as a
great generic term to the position of the designation of a single
question avails against persons gen- ative. Where the subject of a right
erally; and not that the right in
question is a right over a thing. For,
as I shall show hereafter, many of
the rights which are jura or rights
in rem are either rights over or to
persons or have no subject (person
or thing). The phrase in personam,
is an elliptical or abridged expres-
sion for “in personam certam sive
determinatam.” Like the phrase in
rem, it denotes the compass of the
right. It denotes that the right
avails eacclusively against a determi-
^vate person or against determinate
persons.” 1 Austin's Jur. 379, 380.
Ownership or Property.—“Owner-
ship or property is, therefore, a spe-
cies of jus in rem. For ownership is
a right residing in a person over or
to a person or thing, and availing
against other persons universally or
generally. It is a right implying and
exclusively resting upon obligations
which are at once universal and meg-
^n rem happens to be a person, the
position of the party who is invested
with the right wears a double aspect.
IHe has a right (or rights) over or to
the subject as against other persons
generally. He has also rights (inv
personam) against the subject, or lies
under obligations (in the sense of the
Roman lawyers) towards the subject.
But this is a matter to which I shall
revert presently.” 1 Austin's Jur.
383.
Contracts belong to rights in per-
Sonam. “All rights arising from Com-
tracts belong to this last-mentioned
class, although there are certain cases
(to which I shall presently avert)
wherein the right of ownership, and
others of the same kind, are said (by
a solecism) to arise from contracts,
Or are even talked of (with flagrant.
absurdity) as if they arose from Obli-
gations (in the sense of the Roman
lawyers).” 1 Austin's Jur. 384.
§ 104.] RIGHTS, OBLIGATIONS AND REMEDIES. 141
class of agreements under seal." In the United States the word
has obtained vast importance by reason of its introduction into
the constitution, whereby the states are prohibited from pass-
ing any law impairing the obligation of a contract.
The peculiarity of the phrase obligation of a contract seems
to imply that the obligation is something distinct from the
stipulation, agreement or contract, and continues after the con-
tract is executed.” This subject will be treated in the proper
place, but it may be excusable to here observe that the constitu-
tion does not mention obligations arising ea delicto.
The nature of obligation is thus stated by Mr. Justice John-
son in Ogden v. Saunders: * “Right and obligation are con-
sidered by all ethical writers as correlative terms; whatever
I, by contract, give another a right to require of me, I, by
that act, lay myself under an obligation to yield or bestow.
The obligations of every contract will then consist of that right
or power over my will or actions which I, by my contract,
confer on another. And that right and power will be found
to be measured neither by moral law alone, nor universal law
alone, nor by the laws of society alone, but by a combination
of the three—an operation in which the moral law is explained
and applied by the law of nature, and both modified and
adapted to the exigencies of society by positive law. The con-
stitution was framed for Society, and an advanced state of so-
ciety, in which I will undertake to say that all the contracts
of men receive a relative and not a positive “interpretation;
for the rights of all must be held and enjoyed in subserviency
to the good of the whole. The state construes them, the state
applies them, the state controls them, and the state decides
how far the social exercise of the rights they give us over
each other can be justly asserted. I say the social exercise of
1 Ingraham v. Edwards, 64 Ill. 526.
The narrow meaning of the word in
the common law is for the present
sufficiently pointed out by the follow-
ing definition: “An obligation, obli-
gato, onis, f. Obligation is a word of
its own nature, of large extent, but
it is commonly taken in the common
law for a bond containing a penalty,
with condition for payment of money,
Or to do or suffer any act or thing,
and a bill is most commonly taken
for a single bond without condition.
Coke on Lit., lib. 3, cap. 1, sec. 259.”
From an Old Dictionary by F. O.,
[1701].
2See Fletcher v. Peck, 6 Cranch,
87; Ogden v. Saunders, 12 Wheat.
213–217.
3.12 Wheat. 281.
4 i. e., absolute.
142 RIGHTS, OBLIGATIONS AND REMEDIES. [$ 105.
- N
these rights, because in a state of nature they are asserted over
a fellow creature, but in a state of society over a fellow citizen.
Yet, it is worthy of observation how closely the analogy is
preserved between the assertion of these rights in a state of
nature and a state of society in their application to the class
of contracts under consideration.” -
Use Made of the Distinction.—As pointed out above, English
jurists set aside and disregarded entirely the above distinction
so far as it related to the classification of rights, but it is re-
tained and made the basis of one of the most important dis-
tinctions between actions to enforce rights. .
Actions in rem, and actions in personam depend for their dis-
tinguishing features upon the identical principles above pointed
out, and involve respectively rights in rem, and rights in per-
SO700,772). *
These matters will be considered in their appropriate places,
but the student may the better understand this matter by ex-
amining the cases cited below.” {
In place of this classification we find, in Blackstone's classifi-
cation, a separation differing entirely in its expression and
taking a double form, viz.: First, the right of persons and the
rights of things, which has been examined. Second, the rights
of persons is by him classified as absolute and relative. This
latter classification will next require our attention.
SEC. 105. Absolute and Relative Rights.-There is another
designation of the nature of rights of individuals which has
come to us from England and exists as a sort of tradition of the
legal profession, and which constitutes a stumbling block in
the way of a proper understanding of the law of private rights
or the nature of constitutional law. This is the so-called abso-
lute right, which forms such a prominent feature of Black-
stone’s treatment.
He very properly distinguishes between natural persons and
artificial persons and corporations. The rights of natural per-
sons he classifies as absolute rights and relative rights. He in-
cludes under and as a part of the absolute rights of individuals,
personal security, personal liberty, and the right of private
property, without any hint that a portion of these rights belong
1 Ogden v. Saunders, 12 Wheat. Woodruff v. Taylor, 20 Vt. 63; Cooper
281–82. v. Reynolds, 10 Wall, 308.
* Grigg v. Arnett, 134 U. S. 316;
§ 106.] RIGHTS, OBLIGATIONS AND REMEDIES. 143.
$
as well to corporations as to individuals; for example, the in-
violability of contracts, and protection against unreasonable
seizure and Searches. -
For this reason alone the classification of rights into absolute
and relative, as applied by him, is defective.
There is, however, a more powerful reason for discarding
the whole notion of absolute rights. The first book of the
Commentaries treats of all of those reciprocal rights, duties, pre-
rogatives and jurisdictions which make up the sum of govern-
mental relations, including the entire attributes of sovereignty,
legislative, executive, judicial, and also the rights of individuals,
a portion of which are there designated absolute rights, an-
other class of which are called relative rights or domestic rela-
tions, and finally in the same book the subject of corporations
is treated. - -
Absolute rights are there explained to be such as pertain or
belong to particular men as individuals or single persons, and
such as would belong to them merely in a state of nature.
Belative rights—those which are incident to them as mem-
bers of society and standing in various relations to each other.”
Hammond says this division into absolute and relative rights
depends on a theory common to all writers of his time, English
and Continental.” This was the absolute theory of natural
rights, and he says the definition may be set aside with the ob-
solete theory to which it belongs.” º
SEC. 106. All Rights are Relative, not Absolute.—This divis-
ion into absolute and relative rights we shall show is neither
a natural division, nor yet is it one which accords with reason
or the facts. There is no such thing as natural rights or abso-
lute rights existing within organized society; all rights within
the body politic are relative and subject to the law of the land.*
11 Blk. Com. 123. anything which would preclude a
*Int, to Sanders' Justinian, p. lii. reasonable enjoyment of adjacent
3Id., Justinian, p. liv. property, the law would interfere to:
4 Calder v. Bull, 3 Dall, 386; People impose restraints. He is said to own
v. Town of Salem, 20 Mich. 452; 4 Am. his private lot to the center of the
Rep. 400–10. “Every man has an ab- earth, but he would not be allowed
stract right to the exclusive use of to excavate it indefinitely, lest his
his own property, for his own enjoy- neighbor's lot should disappear in the
ment, in such a manner as he shall excavation. The abstract right to
Choose; but if he should choose to make use of his own property, in his
Create a nuisance upon it, or to do own way, is compelled to yield to the
144 RIGHTS, OBLIGATIONS AND REMEDIES. [S 106.
What One has a right to is his; and to call it absolute does not
make it any more his own. What Blackstone probably meant
was that these were rights inviolate, even against the govern-
ment. }
James Wilson, afterwards justice of the supreme court of the
United States, in his address in vindication of the colonies, says:
“Liberty [the equivalent of absolute right] is by the constitu-
tion (of England) of equal stability, of equal antiquity, and of
equal authority, with prerogative. Those duties of the king
and those duties of the subject are plainly reciprocal; they can
be violated on neither side unless they be performed on the
other. The law is the common standard, by which the excesses
of prerogative, as well as the excesses of liberty, are to be reg-
ulated and reformed.”
Blackstone's Treatment Does Woł Justify the Designation.—
JBlackstone's comment upon the subject does not warrant or jus-
tify the division. He says (Book I, page 125): “IEvery man
when he enters into society gives up a part of his natural lib-
erty. The absolute rights of man are usually summed up in
One general appellation, and denominated the natural liberty
of mankind.” -
Again, “political or civil liberty, which is that of a member
of society, is no other than natural liberty so far restrained by
human laws as it is necessary and expedient for the public
good.” This definition is taken bodily from the Institutes."
general comfort and protection of
the community, and to a proper re-
gard for the relative rights of others.
The situation of his property may
even be such that he is compelled to
dispose of it, because the law will not
suffer his regular business to be car-
ried on upon it. A needful and law-
ful species of manufacture may so
injuriously affect the health and
comfort of the vicinity that it can-
not be tolerated in a densely settled
neighborhood; and therefore the
owner of a lot in that neighborhood
will not be allowed to engage in that
manufacture upon it, even though it
be his regular and legitimate busi-
ness. The butcher, in the vicinity of
whose premises a village has grown
up, finds himself compelled to re-
move his business elsewhere, because
his right to make use of his lot as a
place for the slaughter of cattle has
become inconsistent with the supe-
rior right of the community to the
enjoyment of pure air and the ac-
companying blessings and comforts.
The Owner of a lot within the fire
limits of a city may be compelled to
part with the property because he is
unable to erect a brick or stone
structure upon it, and the local reg-
ulations will not permit one of wood.”
Beople v. Town of Salem, 20 Mich.
452; 4 Am. Rep. 410, 411.
1 Institutes, 1–3–1.
§ 107.] RIGHTS, OBLIGATIONS AND REMEDIES. 145.
Again he says: “The absolute rights of every Englishman,
which (taken in a political and extensive sense) are usually called
their liberties,” etc."
These are explained to be such as depend upon the funda-
mental articles of their government, viz.: the Great Charter,
the statute called the “Confirmatio cartarum,” the petition of
rights, habeas corpus act, bill of rights, acts of settlement, etc.
He then proceeds: “Thus much for the declaration of our
rights and liberties. The rights themselves thus defined by these
several statutes consistin a number of private immunities, which
Will appear from what has promised to be, indeed, no other
than either that residuum of natural liberty which is not re-
quired by the laws of society to be sacrificed to public conven-
ience, or else those civil privileges which society has engaged
to provide in lieu of the natural liberties so given up by indi-
viduals.” These, he says, are the right of personal security,
personal liberty, and the right of private property. Thus he
says absolute rights are natural rights, and then says that these
are given up.”
These rights, he has asserted, are the first and primary end
of human law.” It needs no argument to prove that these are
the rights referred to in the preamble of the Federal constitu-
tion as “the blessings of liberty,” and more especially enu-
merated in the amendments proposed by the first congress.”
These rights were treated by Blackstone as standing alone, or
rather opposed to the powers of government, i. e., absolute;
and then follows chapters relating to the king and his domin-
ion, parliament and its powers, the courts and their jurisdic-
tions. In no sense is this in strict harmony with the facts.
Their first palladium was the Great Charter, which was ob-
tained by the barons from King John, and so on through the
list of petitions, bills and acts that define and defend these
rights, there is an appearance of an agreement with the sov-
ereigns for the preservation of those rights which are (by him)
Called absolute, but are spoken of as franchises and immunities.”
SEC. 107. Dord Hale JDid Not Recognize Absolute Rights.-
Lord Hale in his analysis puts these matters in a different man-
11 BIk. Com. 127. 41 Sharswood’s Blk. 125, note.
*1 Cooley's Blk. 125, note. * See Opinion of Jay, J., in Chisholm.
81 Blk, Com. 125. v. Georgia, 2 Dall. 470.
10
146 - RIGHTS, OBLIGATIONS AND REMEDIES. [$ 107.
w
ner. After outlining the main divisions in accordance with
the Roman law, he speaks of natural persons thus: “Persons.
natural are considered in two ways: absolutely, and simply in
themselves, or under some degree or respect of relation.” As
considered absolutely, he speaks of their interest and their ca-
pacities or abilities. Hale does not use the word status, but
uses the English equivalents, and as status was always spoken
of in connection with man or individual, so he treats capacities
or abilities of natural persons considered absolutely in themselves,
i. e., as individuals. The treatment of capacity he refers to
the ability to take and hold rights. This makes the matter
perfectly clear, and robs Blackstone of any excuse for the term.
“absolute rights.”
Hale, in his analysis (sec. 2), the title of which is: “Of the
relations of persons and the rights thereby arising,” says:
“Now, as to persons considered in respect of relation. The
rights thereby arising are of three kinds, namely: Political,
economical, civil.” Then proceeding: “The political relation.
of persons, and the rights emergent thereupon, are the magis-
trate and the people or subject; ” section 3, of the king's per-
son; 4, his prerogatives; 5, his domain and power; 6, his
jurisdiction; 7, his royal revenue; 8, his temporal revenue;
9, his relative prerogatives; 10, of the subordinate magistrates;
11, temporal magistrates; 12, inferior magistrates. In section 13
he approaches again the rights of the people, which he says
are rights of duty (?) to be performed; rights of privilege to be
enjoyed; and continuing, he says, on page 28: “The rights
and liberties to be enjoyed by the people, both in relation to
the king and all his subordinate magistrates, are: that they may
be protected by them and treated according to the laws of the
kingdom in relation to their lives, their liberties, their estates.
And here falls in all the learning upon the statute of Magna
Charta and Charta de Foresta, which concerns the liberty of
the subject, especially Magna Charta (ch. 29) and those other
statutes that relate to the imprisonment of the subject without
due process of law, as the learning of habeas corpus and the law
relative to taxation, the petition of rights, monopolies, martial
law, and he asserts the subject is in a strict sense the correla-
tive of the prince.”
* Accords with Ogden v. Saunders, ante, p. 141.
§§ 108, 109.] RIGHTs, obligATIONS AND REMEDIES. 14.7
SEC. 108. Distinction. Between Hale's and Blackstone's Treat-
ment.—A great distinction between Hale and Blackstone is,
that Hale treats all of these matters pertaining to personal se-
curity, personal liberty and private property as being a part of
the rules governing the relation of persons in society and the
rights thereby arising (see sec. 2) (i. e., he does not recognize as
to these matters any such division as absolute and relative
rights), and classifying them where they very clearly belong,
among the civil rights of men." He classes under political rela-
tions that of which Blackstone says: “Political, therefore, or
civil liberty, which is that of a member of society, is none
other than natural liberty, so far as restrained, etc.; ” or, “The
absolute rights of every Englishman, which, taken in an ex-
tensive and political sense, are usually called their liberties.”
SEC. 109. Rights are Secured, not Surrendered, by Creating
Government.—“In a state of natural liberty every one is allowed
to act according to his own inclination, provided he transgress
not those limits which are assigned to him by the law of nat-
ure; in a state of civil liberty he is allowed to act according
to his own inclination, provided he transgress not those limits
which are assigned to him by the municipal law. True it is
that, by the municipal law other things may be prohibited
which are not prohibited by the law of nature; but equally true
it is that under a government which is wise and good, every
citizen will gain more liberty than he can lose by these prohi-
bitions. He will gain more by the limitation of other men's
freedom than he can lose by the diminution of his own. He
will gain more by the enlarged and undisturbed exercise of his
natural liberty in innumerable instances than he can lose by
the restriction of it in a few.4 -
1 They are not rights in personam,
at all.
21 Blk. Com., p. 125.
31 Bik. Com., p. 127.
4 Civil Rights.- “But when men
form a social compact, and Organize
a civil government, they necessarily
surrender the regulation and control
of these natural rights and obliga-
tions into the hands of the govern-
ment. Admitting it then to be true
that, in general, men derive the right
of private property and of contract-
ing engagements from the principles
of natural universal law; admitting
that these rights are, in the general,
not derived from or created by so-
ciety, but are brought into it; and
that no express, declaratory, munici-
pal law be necessary for their crea-
tion or recognition; yet it is equally
true that these rights, and the obli-
gations resulting from them, are sub-
ject to be regulated, modified, and
148 RIGHTS, OBLIGATIONS AND REMEDIES. [$ 110.
“Upon the whole, therefore, man’s natural liberty, instead of
being abridged, may be increased and secured in a government
which is good and wise. And as it is with regard to his natural
liberty, so it is with regard to his other natural rights.”
The distinction between the position of Blackstone and other
transatlantic writers, and that assumed by Wilson and the other
Revolutionary fathers, may be concisely put thus: By the former,
civil liberty consists of natural liberty restrained by law; by
the latter, society is considered as a natural state. Civil liberty
is natural liberty secured by law. Government is by the latter
held to be but the means of enforcing the safeguards provided
by the social compact which is called the constitution. The
constitution does not create society, but is created thereby. It
may create or change the government. -
SEC. 110. Resumeſ of the Statements.--The distinctions
pointed out above will be made clearer by a comparison of
Blackstone's analysis with the treatment of Lord Hale above
given and the statements of the author.
sometimes absolutely restrained, by
the positive enactions of municipal
law. I think it incontestably true
that the natural obligation of private
contracts between individuals in so-
ciety ceases, and is converted into a
civil obligation, by the very act of
surrendering the right and power
of enforcing performance into the
hands of the government. The right
and power of enforcing performance
exists, as I think, all must admit,
only in the law of the land, and the
obligation resulting from this condi-
tion is a civil obligation. As, in a
state of nature, the natural obliga-
tion of a contract consists in the
right and potential capacity to take
or enforce the delivery of the thing
due to him by the contract, or its
equivalent, So, in the social state,
the obligation of a contract consists
in the efficacy of the civil law,
which attaches to a contract and en-
forces its performance or gives an
equivalent in lieu of performance.
From these principles it seem to re-
sult as a necessary corollary, that the
obligation of a contract made within
a Sovereign state must be precisely
that allowed by the law of the state,
and none other. I say allowed, be-
cause, if there be nothing in the mu-
nicipal law to the contrary, the civil
obligation being, by the very nature
of government, substituted for and
put in the place of natural obliga-
tion, would be co-extensive with it;
but if by positive enactions the civil
obligation is regulated and modified
So as that it does not correspond with
the natural obligation, it is plain the
extent of the obligation must depend
wholly upon the municipal law. If
the positive law of the state declares
the contract shall have no obligation
it can have no obligation, whatever
may be the principles of the natural
law in relation to such a contract.
This doctrine has been held and
maintained by all states and nations.”
Ogden v. Saunders, 12 Wheat. 319,
320; also ante, p. 141.
12 Wilson's Works, 300.
111. IIGHTS, OBLIGATIONS AND REMEDIES. 149
5
Blackstone’s analysis is as follows:
Chapter 4, Section I. The objects of the laws of England
are: 1, rights; 2, Wrongs. ;
Section II. Rights are the rights of persons, or the rights
of things. -
Section III. The rights of persons are such as concern and
are annexed to the persons of men.
Section W. The rights of natural persons are: 1, absolute,
or such as belong to individuals; 2, relative, or such as regard
members of Society.
Section WI. The absolute rights of individuals, regarded by
the municipal laws, compose what is called political or civil
liberty.
Section VII. Political or civil liberty is the natural liberty
of mankind, so far restrained by human laws as is necessary
for the good of society. .*
Section VIII. The absolute rights or civil liberties of Eng-
lishmen, as frequently declared in parliament, are principally
three: the right of personal Security, of personal liberty, and of
private property.
SEC. 111. Civil Liberty and Blackstone's Absolute Rights the
Same.— From the above it is clear that absolute rights are syn-
onymous with political or civil liberty, and so treated under the
seventh head or section, “I’olitical liberty is natural liberty
restrained by human laws.” There is evident confusion be-
tween sections 7 and 8 and the statement implied in section 5.
Section 5 affirms that only relative rights belong to members
of society. Sections 7 and 8 are repugnant thereto. It seems
perfectly clear that there is no such distinctions between the
various rights which are guaranteed and enforced by the law
as that one part of them may be denominated absolute in any
modern idea of the word, and another portion of them relative;
and it is clear that the law, so far as it relates to persons and
those rights which are annexed to the persons of men, irre-
spective of rights over external things or property, regards
them as they stand in public relations or private relations.
Of this peculiarity of Blackstone's handling of the subject,
Austin says: “Blackstone here runs into a singular confusion
of ideas, for he opposes these natural or inborn rights, by the
name of absolute rights, to what he calls the relative rights of
150 RIGHTS, OBLIGATIONS AND REMEDIES. [š 112.
persons. But there are no such things as absolute rights; all
rights are relative; they suppose duties incumbent on other
persons. He defines these absolute rights to be rights apper-
taining to them merely as individuals or single persons." e
He further defines them as rights which would belong to per-
sons in a state of nature, rights which they would be entitled
to enjoy either in or out of society. . . . As to legal rights,
with which alone Blackstone was properly concerned, they, it
is obvious, can only belong to a man in Society. . . . Amongst
others of these absurdities, Blackstone instances, as an absolute
right, the right of private property —a right which, it is quite
obvious, cannot exist out of a state of society.””
Mr. Austin, criticising Lord Hale, says: “The only gross
mistakes that I have found in his masterly outline are his glar-
ing and strange mistranslation of ‘jus personarum et rerum,’ and
his placing under the department assigned to the status of per-
sons, certain rights of persons which he styles their absolute
rights.””
Lord Hale is not subject to the latter criticism, and his ex-
pression does not furnish the ground, although undoubtedly it
did contribute to Blackstone's error. Hale does say of persons
that they are persons natural, or persons civil, i.e., bodies politic.
“Persons natural are considered two ways: absolutely, and sim-
ply in themselves, or under some degree or respect of relation.
In persons natural, simply and absolutely considered, we have
these several considerations, namely: 1. The interest which
every person has in himself. 2. Their capacities or abilities,
etc.; ” but at the same time, in section 2 and section 13, he
treats the rights and liberties to be enjoyed by the people in
relation to their lives, their liberties, their estates, treating
them there as relative rights. Another confirmation of this is
that, when speaking of rights of things in section 23, he says
here they (rights of things) are considered absolutely and sim-
ply in themselves. Blackstone might as well have said absolute
rights of things.
SEC. 112. Possible Explanation of Blackstone's Meaning.—
The peculiar notions at that time obtaining in reference to nat-
| Had Blackstone stopped here, he 2 Austin's Jur., lect. 43. See also
would have avoided the error. notes to table 2, vol. 2, p. 982.
8 Austin's Jur. (3d ed.), 1869, p. 71.
§ 113.] RIGHTS, OBLIGATIONS AND REMEDIES. - 151
ural rights, together with the idea that we must not lose sight
of, namely, the form of government being monarchial, the at-
tribute of sovereignty inhering in the sense of a divine, or at least
hereditary, right in the person of the king, and not remain-
ing or being, as with us, in the people, may have seemed to
Blackstone to require a treatment as distinct, independent, i.e.,
:absolute, even against government, of those rights possessed by
individuals in their particular persons and defined in such con-
stitutional documents as we have mentioned. The idea was
peculiar, and rested upon a seeming antagonism between the
“people” and the government. -
SEC. 113. Law Relates to Personal Relations, Things, Ac-
tions.—It seems obvious that in our scheme of government
such enactments and regulations as are treated by Blackstone
as protecting absolute rights of persons must be embraced within
those rules governing the relations of the people, either in polit-
ical affairs or in private conduct, as Hale classes them, or fall-
ing within the system that has grown up with us under the
name of Constitutional Law.
Every rule of law creates or affect rights, so that every rule
relates to a right. Every rule is addressed to a person, so that
all law is the law of persons, and a thing can have no rights;
nor can the law address things; so that, properly speaking,
there are no such distinctions as rights of persons and rights
of things. But some rules relate to the relations of persons in
society, having no reference to external, tangible, alienable
things. Other rules relate to the dominion of persons over
things, or, briefly expressed, to property." Still another set of
rules relate to those things without which rights in law would
be valueless, namely: the means of redressing or punishing in-
juries to them; which latter branch may be classed under the
head of actions, which a learned writer on jurisprudence says
“includes civil actions or legal demands of a right by an indi-
vidual in which the end is compensation, and a state of prose-
cution in which the end is punishment.”
We have endeavored to disentangle the substance embraced
within the body of the law from the obscurity which has en-
veloped it on account of forms of expression borrowed from
1 Wynehammer v. People, 13 N. Y. 2 Heron on Jurisprudence, 67.
378; Rigney v. Chicago, 102 Ill. 64.
152 RIGHTS, OBLIGATIONS AND REMEDIES. [$ 113.
another system, and, if we have succeeded, it is now plain to
us, from a consideration of the Institutes of Gaius and Justin-
ian, and the analyses of Hale and Blackstone, that the rules of
municipal law may be classified as follows: .
JFºrst. The rules which designate what are persons and reg-
ulate their relations in Society, i.e., the law of persons or per-
sonal relations.
Second. The rules which regulate the nature of and manner
of holding things, i.e., the law of property.
Third. The rules providing remedies, both public and pri-
vate, i. e., actions; and this is the sense in which we say the
law relates to persons, to things, and to actions.
CHAPTER WI.
MAGISTRATE AND PEOPLE.
SEC. 114. The Relation of Men in Society and the Rights
Lepending Thereon.— Sufficient has been said to indicate that
our treatment is of subjects as affected by municipal or civil
law, excluding the laws of nature and divine law, except in so
far as they receive recognition by the civil law. The point has
been reached where must be pointed out the different relations
men may bear toward each other and toward society, and the
rights and duties which flow from such relations. -
The idea of absolute rights has been shown to be but a mere
figure of speech, and the assertion has been ventured that Lord
Bale's treatment gives no warrant for such a designation of
rights. The prominence given in American law to civil rights
renders Hale's treatment peculiarly interesting.
Lord Hale says of the relation of persons and the rights
thereby arising: “The rights thereby arising are of three
kinds, viz.: Political, economical,” and civil.”
1 “Political rights consist in the
power to participate, directly or in-
directly, in the establishment or
management of government. These
political rights are fixed by the con-
stitution. Every citizen has the right
of voting for public officers, and of
being elected; these are the political
rights which the humblest citizen
possesses.” Bouvier's Dic., tit. Rights,
p. 485.
“A civil right under a govern-
ment is a distinct thing from a polit-
ical right in it. Thus, a state may
deny to females the right to vote, but
it cannot deny to them the right to
sue in courts, or impose upon their
property all the burdens of the com-
munity. To hold otherwise would
lead to the affirmation of the right
of the state to make race or color or
religion or age or stature the crite-
rion of civil rights, and to exert the
absolute right of confiscation by
classes or descriptions; for in such a
case every person of that class or de-
scription would stand on an equality
with his fellow-victims.” County of
Santa Clara v. S. P. R. Co., 18 Fed.
Rep. 429.
2 Under this title Hale classes what
we term domestic relations thus:
“Of the rights of persons under re-
lations economical; and first, of hus-
band and wife.”
“Thus far the rights of persons
under a political relation; now con-
cerning the rights of persons under
a relation economical. And they are
these: Husband and wife; parent and
child; master and servant.” Hale's
Anal., p. 29.
3 Hale's civilrights are not the same
as civil rights under our system.
“Concerning Relations Civil. I
have done with relations political
154
[$ 115.
MAGISTRATE AND PEOPLE.
SEC. 115. Magistrate and People.—“The political relation of
persons, and the rights emergent thereupon, are, - the magis-
trate; the people or subject.”
“The suprema magistrates,” says Hale, “are legislative —
the parliament (with whose rights I shall not here intermed-
dle); executive—the king.”
Of the king he says: “Inasmuch as the king is by the law the
and also economical, and therefore
come now to those which I call civil.
Though it is true that term, in a gen-
eral acceptation, is also applicable to
the two former relations. But in a
limited and legal sense, I distinguish
civil relations into four kinds, viz.:
Ancestor and heir, lord and tenant,
guardian and pupil, lord and vil-
lein.” Hale's Anal., p. 33.
Rights — Natural, Civil, Political.
In Luther v. Borden, 7 How. 1, Mr.
Whipple, with whom was Mr. Web-
ster, argued as follows: “There are
three classes of rights: natural, such
as those recognized in the Declara-
tion of Independence; civil, such as
the rights of property; and political
rights. Society has nothing to do
with natural rights except to protect
them. Civil rights belong equally
to all. Every one has the right to
acquire property, and even in infants
the laws of all governments pre-
serve this. But political rights are
matters of practical utility. A right
to vote comes under this class. If it
was a natural right, it would pertain
to every human being, females and
minors.” 7 How. 28.
In harmony with this is the lan-
guage of Justice Field in Ex parte
Virginia: “In the consideration of
questions growing out of these
amendments much confusion has
arisen from a failure to distinguish
between civil and political rights of
Citizens. Civil rights are absolute
and personal. Political rights, on the
Other hand, are conditioned and de-
pendent upon the discretion of the
elective or appointing power, whether
that be the people acting through
the ballot, or one of the departments
of their government. The civil
rights of the individual are never to
be withheld, and may be always
judicially enforced. The political
rights which he may enjoy, such as
holding office and discharging a pub-
lic trust, are qualified because their
possession depends on his fitness, to
be adjudged by those whom society
has clothed with the electiye author-
ity. The thirteenth and fourteenth
amendments are designed to secure
the civil rights of all persons, of
every race, color, and condition; but
they left to the states to determine to
whom the possession of the political
powers were to be intrusted. This
is manifest from the fact that when
it was desired to confer political
power upon the newly-made citizens
of the states, as was done by inhibit-
ing the denial to them of the suf-
frage on account of race, color and
previous condition of servitude, a
new amendment was required.” 100
U. S. 368.
“Civil rights are those which have
no relation to the establishment, sup-
port or management of the govern-
ment. These consist in the power of
acquiring and enjoying property, of
exercising the paternal and martial
powers, and the like. It will be
observed that every one, unless de-
prived of them by a sentence of civil
death, is in the enjoyment of his
civil rights, which is not the case
with political rights; for an alien, for
example, has no political, although
in full enjoyment of his civil, rights.”
Bouvier's Dic., tit. Rights, p. 485.
§ 115.] IMAGISTRATE AND PEOPLE. 155
head of the kingdom and people, the laws of the kingdom, eo
Žntuitu, have lodged in him certain rights, the better to enable
him to govern and protect his people.”"
The next section is entitled, “Of such rights as relate to the
king's person,” “because they do belong to a king under this
relation as king.”.” And under this head Hale treats the ca-
pacities of the king as being of two kinds–his political capacity,
his natural capacity; thus, “As to his political capacity, he is
a sole corporation of a more transcendent nature and constitu-
tion than other corporations; whereby he is discharged from
any incapacities which, in the case of other persons, would ob-
struct his succession, as alienee, etc.; disable his actions, as
infancy or coverture.” -
It thereby appears that the king is a sole corporation; it
is also made plain that he is a political corporation. The
kingdom of Great Britain is in the same sense a corporation.
Section four of the analysis concerns the prerogatives of the
king, “and those prerogatives are of two kinds: direct and sub-
stantive prerogatives, incidental and relative prerogatives.”
The direct and substantive prerogatives may be distributed
under three branches, viz.: Jura majestatis, vel summº imperii,
i. e., the right of dominion; potestas jurisdictionis, vel m'at?
Żmperº, i.e., the power of jurisdiction; census regalis, or the
royal revenues.
Blackstone says: “The most universal public relation by
which men are connected together is that of government,
namely, as governors and governed, or, in other words, as mag-
istrate and people. Of magistrates, some are supreme, in whom
the sovereign power of the state resides. In England this su-
preme power is divided into two branches: the one legislative,
to wit, the parliament, consisting of kings, lords and com-
mons; the other executive, consisting of the king alone.” He
then asserts: “In the British parliament is vested the legis-
lative power and, of course, the supreme and absolute author-
ity.” The nature of legislative power in the United States
will be examined in another connection, but it may be here
1 Hale's Anal., sec. 2. ward Coke, “is so transcendent and
2 Id. absolute that it cannot be confined
*Blk. Com. 147. “The power and either for causes or persons. It hath
jurisdiction of parliament,” says sovereign and uncontrolled author-
Blackstone, quoting from Sir Eä- ity in making, affirming, enlarging,
156 MAGISTRATE AND PEOPLE. [$$ 116, 117.
observed that this expression by Blackstone will not do for the
United States."
SEC. 116. Classes of Magistrate.—Blackstone divides magis-
tracy into supreme and subordinate, following in this Hale's
analysis: “All subordinate magistracy is derived from the
supreme, either immediately or mediately, either by express
grant from him or by something that implies or supposes it in
its original, viz.: custom or prescription.”
Blackstone says of magistrates: “Some, also, are Supreme,
in whom the sovereign power of the state resides; others are
subordinates, deriving all their authority from the Supreme
magistrate and accountable to him for their conduct, and act-
ing in an inferior, secondary sphere.” This comports logically
with the facts as they existed at that time in England,- one
set of magistrates derived power from another.
SEC. 117. Magistrates in the United States.— There is a
radical difference between the nature of public officers and
Blackstone's description of magistrates and people under the
English constitution. Under our law, all officers derive their
power from the people.”
It follows that the reason not exist-
restraining, abrogating, repealing,
reviving and expounding of laws.”
1 Blk. Com. 160. The quotation
from Coke, as pointed out by Judge
Wilson, is not only not literal, but
omits important qualifications. Coke
added that parliament was Sovereign
for making laws and proceeding by
bill, meaning that parliament was the
supreme legislative authority. 1 Wil-
Son's Works, 164. “Parliament,” says
Matthew Hale, “is the highest and
greatest of courts.” As Judge Cooley
justly observes, “Parliament was not
merely a law-making parliament, but
could execute the law'” (1 Cooley's
Blk., 3d ed., 161, note); and, as pointed
out by Blackstone and Coke, it was
the supreme authority in expounding
laws. Such attributes are judicial in
their nature. Even in the United
States there have been instances
where the exercise of judicial power is
held to have been retained by the leg-
islature, and especially so much of
equity as the legislature sees fit not
to delegate. Instances to which al-
lusion is made is perhaps peculiar
to the Pennsylvania constitution as
expounded by the supreme court of
the United States; the other case
arising in the action of the legisla-
ture of Connecticut, as shown in the
case to which allusion has heretofore
been made. Such cases illustrate
the imperfect separation of the de-
partments of government. See Liv-
ingston v. Moore, 7 Pet. 469; Calder
v. Bull, 3 Dall. 386.
1 Taylor v. Porter, 4 Hill, 140; 40
Am. Dec. 274; Regents v. Williams, 9
Gill & J. 365; 31 Am. Tec. 72.
2 Hale's Anal., Sec. 10.
81 Com., ch. 2.
4 See Marbury v. Madison,1 Cranch,
137. As to the nature and Several
lcinds of Offices, see McCormick v.
Pratt, 8 Utah, 298, 17 L. R. A. 243,
and a valuable note in the last re-
port.
§ 117.]
MAGISTRATE AND PEOPLE. 15'ſ
ing for the distinction between supreme and subordinate mag-
istrates, made by Hale and Blackstone, it is unnecessary to
make such a division in this analysis.
Mational and State Officers.-Our magistrates, who are all
included within the appellation “officers,” are, however, natu-
rally divisible into two great classes, on account of the sphere in
which they perform their official duty, viz.: as they are federal
officers or state officers. It would not, however, be proper to
say that one class of officers was superior or supreme, and the
others subordinate, because they are each and all merely official
agents created by the will of the people, and, in the main, inde-
pendent of each other, and within the sphere assigned them
they are independent of all other officers.”
A distinctive feature of the American system of govern-
ment, which pervades every part of it, is the idea of delegating
the administration of certain subjects to one branch of magis-
tracy and the administration of certain other subjects to an-
other branch, but each, while dependent upon the same source
for power, is constituted by that power, within the respective
sphere of each, independent of the other. In this the people
view to utility and convenience, and
not for the purpose of granting emol-
uments during that period to the of.
fice-holder. The prospective
Salary or other emoluments of a pub-
! “It is impossible to conceive how,
under our form of government, a per-
Son can own or have a title to a gov-
ernmental office. Offices are created
for administration of public affairs.
When a person is inducted into office,
he thereby becomes empowered to ex-
ercise its powers and perform its du-
ties, not for his but for the public ben-
efit. It would be a misnomer and a
perversion of terms to say that an in-
cumbent owned an office or had any
title to it. The doctrine on this sub-
ject is thus stated in the case of
Conner v. The Mayor of New York,
1 Seld. 285: ‘Public Offices in this
state are not incorporeal heredita-
ments, nor have they the character
or quality of grants. They are agen-
cies. With few exceptions they are
voluntarily taken and may at any
time be resigned. They are created
for the benefit of the public and not
granted for the benefit of the incum-
bent. Their terms are fixed with a
lic office are not property of the offi-
cer, nor the property of the state.
They are not property at all. They are
like daily wages unearned and which
may never be earned. The incum-
bent may die or resign, and his place
be filled, and the wages be earned by
another. The right to the compensa-
tion grows out of the rendition of
services and not out of any contract
between the government and the
officer that the services shall be ren-
dered by him.’” Donahue v. County
of Will et al., 100 Ill. 94–103.
2 Charles River Bridge v. Warren
Bridge, 11 Pet. 139; Tennessee v.
Davis, 100 U. S. 263; United States
v. Cruikshank et al., 92 U. S. 547;
Ex parte Virginia, 100 U. S. 346.
158 MAGISTRATE AND PEOPLE, [$ 117.
are truly the sovereigns, and it is vain to denominate certain ag-
gregations of the people as sovereign and independent states,
who have irrevocably renounced a portion of the sovereignty."
The great and radical vice of the constitution of the old con-
federacy was the principle of legislation for states or governments
in their corporate or collective capacities, and as contradistin-
guished from the individuals of whom they consisted.”
The radical change which was made by the adoption of the
new constitution was that in the main all laws of the confed-
eration were addressed to the states in their political capacity,
not to the individual citizens, as is now the case in the United
States; the citizen of any state being addressed by the laws of
both jurisdictions. This line of demarkation is not territorial,
but with reference to certain objects of jurisdiction. The idea
cannot be better stated than it is in No. XXXIX of the Feder-
alist: * “First. In order to ascertain the real character of the
government, it may be considered in the relation to the founda-
tion on which it is to be established; to the sources from which its
Ordinary powers are to be drawn; to the operation of those pow-
ers; to the extent of them, and to the authority by which future
changes in the government are to be introduced.* . . . The dif-
ference between alºederal and National government, as it relates
to the operation of the government, is, by the adversaries of
the plan of the convention, supposed to consist in this: that in
the former (Federal) the powers operate on the political bodies
composing the confederacy, in their political capacities; in the
latter, on the individual citizens composing the nation, in their
individual capacities. On trying the constitution by this cri-
terion it falls under the National, not the Federal, character;
though perhaps not so completely as has been understood. In
several cases, and particularly in the trial of controversies to
which states may be parties, they must be viewed and proceeded
against in their collective and political capacities only. But
the operation of the government on the people in their individ-
ual capacities, in its ordinary and most essential proceedings,
1 Ogden v. Saunders, 12 Wheat. 350; *See also Ogden v. Saunders, 12
TJnited States v. Booth, 21 How. 516; Wheat. 350, Marshall, J.
Dodge v. Woolsey, 18 How. 331-347, 4 Van Horne's Lessee v. Dorrance,
2 Federalist, No. 15. 2 Dall. 308; Chisholm. v. Georgia, 2
Dall. 416.
§ 117.] MAGISTRATE AND PEOPLE. 159
will, on the whole, in the sense of its opponents, designate it,
in this relation, a national government.
“But if the government be national, with regard to the oper-
ation of its powers, it changes its aspect again when we con-
template it in relation to the extent of its powers. The idea.
of a national government involves in it not only an authority
over the individual citizens, but an indefinite supremacy over
all persons and all things so far as they are objects of lawful
government. Among a people consolidated into One nation,
this supremacy is completely vested in the national legislature.
Among communities united for particular purposes, it is vested
partly in the general and partly in the municipal legislatures.
In the former case all local authorities are subordinate to the
supreme, and may be controlled, directed or abolished by it at
pleasure. In the latter the local or municipal authorities form
distinct and independent portions of the Supremacy, no more
subject, within their respective spheres, to the general author-
ity, than the general authority is subject to them within its
own sphere. In this relation, then, the proposed government
cannot be deemed a national one, since its jurisdiction extends
to certain enumerated objects only, and leaves to the several
states a residuary and inviolable sovereignty over all other Ob-
jects.” -
If we compare the British government with our own, keep-
ing in view the above distinctions, we may plainly see that for
the former government Blackstone's division of magistrates into
supreme and subordinate accords with the principles of the
English constitution, that people consolidated into one nation
with the supreme legislative authority vested in parliament,
the supreme executive authority in the person of the king; the
others are subordinate magistrates deriving all their authority
from the supreme magistrates, accountable to them for their
conduct, acting in an inferior secondary sphere as subordinate
magistrates, being classed sheriffs, coroners, justices of the peace,
constables, surveyors of highways and overseers of the poor.
It follows that in our government the state officers cannot be
said to be in any manner inferior or subordinate to those of the
general government, while the state magistrates, bearing the
See Mr. Justice Wilson's compari- States with that of Great Britain.
son of the constitution of the United 1 Wilson's Works, ch. XI.
160 MAGISTRATE AND PEOPLE. [$ 118.
same names and having similar authority as the subordinate
magistrates named by Blackstone, might be said to be subordi-
nate state magistrates.
Our primary division of magistrates or officers will be there-
fore into federal and state."
There are certain officers who derive their position from ap-
pointment of other officers, to whom the terms inferior or sub-
ordinate might be applied, e.g., the cabinet of the president
and similar state officers; but these are not of the class men-
tioned by Blackstone, and the mode of appointment does not
always indicate the nature of powers to be exercised.
It is unnecessary here to enter into the details of comments on
each particular subdivision of the federal offices, as the reasons
for the divisions are apparent and familiar to every one. -
Federal officers are divided, according to the department in
which they act, into legislative, executive, and judicial.
As to state officers it is not deemed advisable to observe the
division made by Blackstone into supreme and subordinate
magistrates, for the reason that it appears from the opening
words of his chapter on subordinate magistrates that he might
well have included other officers not so designated, and for the
further reason that the plan of the division we shall adopt seems
more simple and natural.”
In One class of state officers will be included all such offi-
cers as may be termed “general state officers,” including in it
legislative, executive and judicial officers of the state. Under
the other head, “ local officers,” we will include county officers,
township officers and municipal officers, using this latter term
in the more restricted sense with reference to municipal corpo-
rations.
SEC. 118. Public Persons.—In American law the word “per-
son’’ embraces all the beings and entities, official, individual,
bodies politic and corporate, capable of having, owning or
1 Federalist, No. 39.
2 Under the English system many
offices were property and classed as
incorporeal hereditaments, giving the
individual incumbent a right to the
office and its emoluments. A man
was said to have an estate in them.
Certain offices or public duties an-
nexed to the possession of real es-
tate. 2 Cooley's Blk. (3d ed.), p. 36;
Rex v. Knollys, 1 Ld. Ray. 13. The
American theory of government does
not permit ownership of offices and
they are not hereditaments. 3 Kent,
*454; ante, p. 157.
§ 118.] - MAGISTRATE AND PEOPLE. 161
exercising rights;" and under this title will be discussed the
capacities, rights, duties and privileges of the various persons,
official and private, recognized by our law. A classification
of persons familiar to any one who has had even a slight
acquaintance With law is that into natural persons and arti-
ficial persons. This classification is not because of any differ-
ence in the nature or capacity to own or enjoy rights. This
is the classification of Blackstone, and he treats parliament
among natural persons, and also as a body politic. Inasmuch
as the title “artificial persons” embraces not only private cor-
porations, but all bodies politic, including the United States,
the states, etc., by following this classification we violate the
principle of classification adopted, and treat under artificial
persons, persons moving in entirely different spheres of action.”
Whereas, the private corporation, so far as concerns its ordinary
rights and the sphere in which it moves, does not differ materi-
ally from a natural individual, the corporation simply has not
so many kinds of rights. While, therefore, this natural classifi-
cation is not disregarded, we will adopt, as a primary division
of persons, a classification which contrasts them because of the
essential differences between the modes in which they arise,
and the differences between their legal attributes and capacity
and the sphere in which they move. In that view, all persons
recognized by the law of the United States may be arranged
under two great classes—public persons and private persons.”
This classification enables us to use the next obvious and nat-
ural classification of public persons, namely, magistrates and
people. Under it may be brought into view, in that position
and prominence due to the legal personage which in reality
constitutes the body politic, the people, and permit its treatment
from the American standpoint, which is entirely different from
the nature of the same title-head as used in the English law.
If the student will but turn to the Commentaries of Black-
stone, he will find that under the head “People,” the people
I “Personable, personabilis, le. adj. are created by the government or by
One who may maintain a plea in a the people. The nation and the states
Court, qui habet personam stamdi in come into existence by original agree-
judicio.” From Old Dictionary by ment or convention of the people.
F. O., 1701. 3 Walker, Am. Law, p. 59.
*All corporations, strictly so called, *
11
162 MAGISTRATE AND PEOPLE.
[$119.
is used as synonymous with subjects, and only noticed as in-
dividuals. They are not said to be a part of the body politic.
Justice Wilson very correctly brings this out as follows: “The
parliament formed the great body politic of England. What,
then, or where, are the people? Nothing; nowhere. From
legal contemplation they totally disappear. They are not so
much as the baseless fabric of a vision. Am I not warranted
in saying that, if this is a just description, a government so,
and justly so, described, is a despotic government.”"
SEC. 119. The People of the United States, in their aggregate
capacity, constitute the great body politic, the nation, and are
commonly spoken of as the sovereign people. The identity,
capacity and obligations of the people may be examined under
this classification.
The people of the United States appear in a double aspect—
as the people of the nation and of the states. Private persons
are likewise naturally classified as individuals and corporations,
which corresponds identically with the natural and artificial
persons of Blackstone.
The word “magistrate” is used in conformity with the pre-
vailing idea in the United States, and in conformity with the
meaning of the word “person’’ as heretofore explained, desig-
nating not, in strictness, the individual who holds the office,
because we are not concerned with who he is, but with what
is his legal or political capacity or personality.”
Officers are State and Federal.-In the treatment of these
subjects it will be observed that not only the meanings of the
words “people” and “magistrate ’’ are different from the ideas
associated with the same words in the English law, but the
position of the treatment and classification is transposed, for
the reason that it is more natural and convenient that we ad-
dress ourselves to the principal personage first, viz., the people,”
1 Chisholm v. Georgia, 2 Dall. 462.
2 Mississippi v. Johnson, 4 Wall.
475, 501; Marbury v. Madison, 1
Cranch, 137.
3 The editor of the fourth edition
of McCrary on Elections says: “In
the great case of Chisholm, Exºr, v.
The State of Georgia, decided in 1793,
Justice Wilson, one of the chief ar-
chitects of our sytem of govern-
ment, said: “The well-known ad-
dress of Demosthenes, when he ha-
rangued and animated his assembled
countrymen, was: “O men of Ath-
ens.” With the strictest propriety,
therefore, classical and political, Our
national scene opens with the most
magnificent object which the nation
§§ 120, 121.] VMAGISTRATE AND PEOPLE. 163
and next, to their agents or officers, after which, in the proper
place, may be treated, in their order, private persons, artificial
and natural, domestic relations, property and procedure or
actions. The criminal law may conclude the subject of mu-
nicipal law, after which the other branch of jurisprudence, in-
ternational law, may be briefly treated.
In order to obtain a clear conception of the political rela-
tions of the various persons that compose the body politic, it
is necessary that we obtain a distinct idea of the nature of the
persons themselves.
SEC. 120. Definition of Terms.--The words society, people,
nation, State, government, citizen and magistrate are all familiar
words, and each is supposed to have, and in fact should have,
distinct and definite meaning. It would be beyond the scope
of this work to enter into an extended discussion of the origin
and nature of society prior to the time when it had progressed
so far as to be properly denominated civil society. Those dis-
cussions will be found in the writings of a century ago, and were
then great and practical questions, having for their object the
determination of what was the true basis and origin of gov-
ernment, that is, whether the right of administration of laws
or the right of kingship or the right of government was of di-
vine origin, or whether all civil government was an invention
of man and was based upon the consent of the governed, or, to
put it otherwise, whether the government was superior to the
man."
SEC. 121. Society, Natural and Civil-We have been told
that there was an original and natural state of society antedat-
ing civil society, by which we méan an association of individu-
als united by common consent for a common purpose, ordina-
rily for the protection of private rights; * but it is apprehended
that as near an approach to the state of natural Society discow-
erable, or in fact worthy of investigation, is found in the con-
dition of the Indian tribes which inhabited America at the time
of its settlement by our ancestors, and who are presumably held
together by the natural ties of a common ancestry.
could present. “The people of the people? They were the citizens of
United States” are the first person- the thirteen states.’” Sec. 15.
ages introduced. Who were those 1 Chisholm v. Georgia, 2 Dall. 463.
2 Declaration of Independence.
164: - MAGISTRATE • AND PEOPLE. [$$122, 123.
Questions relating to title and to real property, and claims
by or in behalf of Indian tribes or members thereof, or citizens
of the Union living among the Indians, have elicited several
careful and able discussions of the state of society among the
Indians which may be noticed hereafter. A mere citation will
here suffice."
SEC. 122. The People.—Before treating the several public
persons in detail it will be useful to here consider concisely all
the various persons. Iły thus examining them in close connec-
tion and obtaining a slight premotion of each, we may be able
the more easily to perceive the distinguishing features of each.
We will briefly outline what is meant by the people, state, gov-
ernment, and citizen.
The word “people” means a body of persons regarded col-
lectively. “The people,” using the term in its proper legal
acceptation, means the whole mass of male and female citizens,
and this mass or body constitutes the political unit.”
But in the constitution the word “people” is often used where
the whole unit is not intended, but individuals are meant; thus,
in the Bill of Rights, in all provisions in reference to seizures
and searches, jury trial, right to assemble, in fact, in all refer-
ence to personal liberty. -
SEC. 123. Government, Magistrates, Officers.-Government
is that organization to which the exercise of political powers is
intrusted. It is the political system created by the agreement
of the people, evidenced by the constitution or fundamental
law. Government is not sovereign. “The sovereignty of the
government is an idea belonging to the other side of the At-
lantic.” The departments of government simply exercise dele-
gated powers as the agents of the people.* The government
manifests itself in various forms of magistracy. These magis-
trates are officers; they have no personal powers, dignities or
pre-eminences—nothing but official. The government nor any
branch of it has any political rights of its own; it simply repre-
sents others who have. The constitution makes a plain distinc-
1 Johnson, Lessee, v. McIntosh, 8 8 Webster's Reply to Calhoun on
Wheat. 543; Cherokee Nation v. the Foote Resolution.
Georgia, 5 Pet. 1; Worcester v. 4 Lane Co. v. Oregon, 7 Wall. 71–76;
Georgia, 6 Pet. 512. White v. Hart, 13 Wall. 650; 2 Shars-
*McCrary on Elections (4th ed.), wood's Blk. 47, note.
§ 13.
§ 124.] MAGISTRATE AND PEOPLE. 165
tion between the people and the government." The citizens
are private persons, either individuals or private corporations,
although the latter have no political rights.
SEC. 124. Double Meaning of State.- A state, using the ex-
pression in its broadest political sense, as nation—as the
community organized under a constitution and exercising its
constitutional powers, includes all persons, citizens, the people
and the magistrate.” Thus we say citizens, meaning individuals
which compose the state; the people of a state, meaning the
body in whom the right of government inheres; the govern-
ment, meaning those magistrates to whom is delegated the
power to administer the law. The people collectively consti-
tute a person—a body politic, possessing rights, affairs, duties
and property; but you cannot say of the government—that is,
the legislature of the state, the executive of the state, or the
judiciary of the state, or of the three combined—that they con-
stitute a person,” although, as magistrates, each officer has legal
personality. The greatest person of the trinity is doubtless the
people, for it is the body politic of the state. But the most
important person is the individual. Thus we say government
is made for man. The chief end and purpose of government is
the protection of private rights. By naming one part less than
that whole “ you do not express the full meaning of the state,
but altogether they constitute that glorious fabric of which
philosophers delight to speak under the designation of a state.”
“A state, however,” says Chief Justice Chase, “in the ordi-
nary sense of the constitution, is a political community of free
citizens occupying a territory of definite bounds and organized
under a government sanctioned and limited by a written con-
stitution and established by the consent of the governed.”
The picture cannot be exhibited in clearer light than by using
the language used by him. “It is the union of such states
under a common constitution which forms the distinct and
greater political unit which the constitution designates as the
United States, and makes of the people and states which com-
pose it one people and one country.” And it is in this sense
1 Texas v. White, 7 Wall, 700–721. 4 Penhallow v. Doane, 3 Dall. 93.
2 State v. Young, 29 Minn. 536; 5 Texas v. White, 3 Wall. 721; Pen-
Jameson on Const. Con. 15. hallow v. Doane, 3 Dall. 93.
8 State v. Young, 29 Minn. 536.
166 MAGISTRATE AND PEOPLE.
[$ 125.
in which he used the expression, “The constitution in all its
provisions looks to an indestructible Union composed of in-
destructible states.””
“The word ‘state’ has a meaning peculiar to the United
States. It means a certain political society forming a constit-
uent part of the Union. There can be no state unless it be en-
titled to a representation in the senate. It must have its sep-
arate executive, legislative and judicial powers.”
SEC. 125. Complexity of the State and National System.—The
Ordinary citizen and the casual observer as he daily sees the
peaceful working of our governmental system, developed by
the experience and study of a century, has no occasion to notice
the exceeding complexity of the system of laws under which we
live. But in fact the American system of law is the most com-
plex that the history of mankind presents.”
“Our country exhibits the extraordinary spectacle of dis-
tinct, and in many respects independent, governments over the
same territory and the same people; ” “but, to make the anom-
aly striking, those functions which are declared or commonly
called the government are not sovereign. The people have not
delegated the sovereignty itself to any one; they have rather
1 “All the rights of the states as in-
dependent nations were surrendered
to the United States. The states are
not nations, either as between them-
selves or towards foreign nations.
They are sovereign within their
spheres, but their sovereignty stops
short of nationality. Their political
status at home and abroad is that of
states in the United States. They
can neither make war or peace with-
out the consent of the national gov-
ernment. Neither can they, except
with like consent, ‘enter into any
agreement or compact with another
state.” Art. 1, Sec. 10, cl. 3.” New
Hampshire V. Louisiana, New York v.
3DOuisiana, 108 U. S. 90.
2 Hepburn et al. v. Ellzey, 2 Cranch,
445.
8 Bryce, Am. Con, vol. 1, part 1,
p. 14. Mr. Bryce observes: “The cas-
ual reader of American political in-
telligence in European newspapers
is not struck by this phenomenon, be-
Cause state politics and state affairs
generally are seldom noticed in
Europe. Even the traveler who visits
America does not realize its impor-
tance, because the things that meet
his eye are Superficially similar all
Over the continent, and that which
Europeans call the machinery of
government is in America, conspicu-
Ous chiefly by its absence. But a
due comprehension of this double
Organization is the first and indis-
pensable step to the comprehension
of American institutions; as the
elaborate devices whereby the two
Systems of government are kept from
Clashing are the most curious sub-
ject of study which those institutions
present.” Page 15.
4 Ogden v. Saunders, 12 Wheat. 350.
§ 126.] IMAGISTRATE AND PEOPLE. 167
destroyed the old idea of sovereignty. The constitution, to-
gether with treaties made under it and laws passed in conform-
ity with it, are the Supreme law of the land, and, as the Words
imply, there is no higher power." Certain officers are elected
with authority over certain subjects throughout the whole do-
main of the nation. For other purposes, territorial limits exist,
the people of which constitute a body politic, and this person
(the state) exercises its power through officers appointed with
power to do everything not delegated to federal officers or not
reserved to the people.
The chief difference between the power of the United States
and the state consists not in the manner of their creation Or
operation, but in the objects of control, for each exercises only
delegated power; one enumerated, the other limited Only by
the limitations of the state constitution and what has been
already granted to the national government. Both exercise
delegated powers as agents of the people.” This, with the con-
stitutional adjustment of the judicial power, independent of
and separate from and co-ordinate with the legislative and ex-
ecutive departments, and clothed with the authority to declare
void and of non-effect all acts of legislation, from whatever
source emanating, which contravene the provisions of the fed-
eral or the state constitutions, present the unique and striking
features of the American constitution,” the adoption of which,
in its day, was regarded a prodigy.
SEC. 126. Development by Conflict.— The present approxi-
mate perfection of Our Scheme of government has not been ac-
complished without bitter strife and the fiercest of conflict in
the judicial forum, and, in several instances, resort to armed
force has been necessary. The national character of the fed-
eral government several times barely escaped shipwreck upon
that ever-threatening rock which has been designated by the
name of “state's sovereignty.” The early tendency was toward
the disintegration of the nation.
The first decision of the Supreme court upon a constitutional
question * was answered by an act of the state legislature de-
1 Peel Splint Coal Co. v. West Vir- 3 Peel Splint Coal Co. v. West Vir-
ginia, 36 W. Va. 802; 17 L. R. A. 387; ginia, 36 W. Va. 802; 17 Law Rep. 387.
White v. Hunt, 13 Wall. 650. 4 Chisholm v. Georgia, 2 Dall. 419.
*McCullough v. Maryland, 4Wheat. See Hans v. Louisiana, 134 U. S. 1.
410; Chisholm. v. Georgia, 2 Dall. 419.
168 IMAGISTRATE AND PEOPLE. [S 127.
claring the penalty of death against any or all persons who
should attempt the enforcement of the decision." Another de-
cision, involving another phase of the same question,” met forci-
ble resistance by the order of the governor of Pennsylvania.”
Jefferson 4 and Lincoln" each ignored and disregarded the find-
ings of the supreme tribunal. It should be observed that they
only ignored what they called extra-judicial findings, and did
not openly affirm the right to disregard a decision of the court;
while Jackson refused to execute the decision of the supreme
court in Worcester v. Georgia, 6 Pet. 515–597. * ,
SEC. 127. Great Questions Still Unsettled.—To-day the great-
est unsettled questions under the constitution relate to the line
of demarkation between federal and state jurisdiction, unless.
possibly it may be the relations of church and state.
It has taken years for the people to thoroughly acquaint
themselves with the real character of these co-ordinate juris-
dictions and the true position of the states within the nation.
When this is thoroughly settled (and one justice of the su-
preme court has said it is time it should be) and their real re-
lations are admitted by the individual, the people of the states,
the people of the United States, and the government of each,
the true grandeur of the achievement of the sages who framed
our constitution, the lawyers who have construed it, and the
patriots who have preserved it, and likewise the beauty, sym-
metry and strength of this government, adapted as it is to re-
sist the attacks upon the liberty of the whole people and to
protect the humblest citizen in his private rights, will be ap-
parent.”
1 Const. Hist. Am. Taw, 70. in doleful foreboding on account of
2 United States v. Peters, 5 Cranch, existing tendencies, and yet it is un-
136. wise, when viewing the beauty and
3 Const. Hist. Am. Law, 83–85. strength of the plan and structure,
4 Marbury v. Madison, 1 Cranch, not to perceive that the permanency
137. of it all depends upon the founda-
5 Dred Scott Case, 19 How. 393. tion upon which the structure rests,
*This is not the place to indulge the character of individual man.
CEIAPTER WII.
THE PEOPLE.
“It seems to me, therefore, that we only perplex ourselves when we
attempt to explain the relations existing between the general govern-
ment and the several state governments, according to the ideas of sover-
eignty which prevail under systems essentially different from our own.” –
Webster's Reply to Calhoun.
SEC. 128. The People—Identity.— In the United States the
people are brought on the stage as an acting political entity,
acting, it is true, always through representatives. As expressed
by Wilson, one of the signers of the Declaration of Independ-
ence: “In free states the people form an artificial person or
body politic, the highest and noblest that can be known.”
Dy “the people” of a state is meant all of the members which
compose that state and are integral parts of it, together mak-
ing a body politic.”
“The people as a corporate unit form an artificial person or
body politic; thus constituted they form a moral person.” “It
is this person we call a state.” “There is no distinction be-
tween the people and the state.”"
It must not be forgotten that, in using the expression “the
people,” there is a distinction between the population of the
nation, as individuals, and the same population Organized under
a constitution. By “the people,” in this connection, we intend
a body politic, a corporate unity. Because of the quality of
singleness we may properly use the pronoun “it,” though this is
not usual. It is hard for the citizen to lose sight of the indi-
viduals in the body; but correctly viewed, as drops of water
lose their forms as drops when they mingle with the whole and
become not drops, but one body, even so the citizen in his po-
litical capacity loses the civil capacity of an individual when
viewed as a part of that great unit “the people.”
12 Wilson's Works, 6. 3 Keith v. Clark, 97 U. S. 460; 2.
2 Penhallow v. Doane, 3 Dall. 55, 93; Wilson’s Works, 321.
Wells v. Bain, 75 Pa. St. 39; Scott 41 Wilson's Works, 321–25; 2 Wil-
(Dred) v. Sanford, 19 How. 393. Son’s Works, 6.
5 Penhallow v. Doane, 3 Dall, 93.
170 THE EPEOPLE. [S 129.
It is the whole mass, and not a majority of the individuals
composing it, which constitutes the people, and the people are
to be regarded, not as an unorganized mob, but as a corporate
unity composing a society." There are dicta to the effect that
the people, when spoken of in the political sense, means only
those persons having the right to vote, that is, the electors;
and it is at the same time said that in the electors is vested the
sovereignty.” Thus stated, the idea does not, as we shall see,
properly obtain, and is contrary to the principles of American
institutions.” Voters are but parts of the machinery of govern-
ment.
indicate persons or individuals.
ence to unreasonable seizures and searches.
In the constitution “the people” is sometimes used to
So in all provisions in refer-
In such provision
it is identical with the use in Blackstone. -
SEC. 129. Capacity—IPower— Sovereignty.—We may now
examine the powers of the people, and in the course of this ex-
1 Jameson, Const. Con. (4th ed.),
pp. 18, 19, notes; Von Holst's Con.
ilaw, 48, 49; Penhallow v. Doane, 3
Dall. 92.
“A distinction was taken at the
bar between a state and the people of
the state. It is a distinction I am not
capable of comprehending. By a
state forming a republic (speaking of
it as a moral person), I do not mean
the legislature of the state, the ex-
ecutive of the state, of the judiciary,
but all the citizens which compose the
state, and are, if I may so ea press
amyself, integral parts of it; all to-
gether forming a body politic. The
great distinction between monarchies
and republics (at least our republics)
in general is, that in the former the
monarchy is considered as the Sov-
ereign, and each individual of his na-
tion as a subject to him, though in
some countries with many important
special limitations. This, I say, is
generally the case, for it has not been
so universally. But in a republic, all
the citizens, as such, are equal, and
no citizen can rightfully exercise any
authority over another but in virtue
of a power constitutionally given by
the whole community, and such au-
thority, when exercised, is in effect
an act of the whole community,
which forms such body politic. In
such governments, therefore, the Sov-
ereignty resides in the great body of
the people, but it resides in them not
as so many distinct individuals, but
in their politic capacity only. Thus
A., B., C. and D. are citizens of Penn-
sylvania, and as such, together with
all the citizens of Pennsylvania, share
in the sovereignty of the state. Sup-
pose a state to consist exactly of the
number of 100,000 citizens, and it were
practicable for them all to assemble
at One time and in One place, and
that 99,999 did actually assemble.
The state would not be in fact as-
semble. Why? Because the state in
fact is composed of all the citizens,
not of a part only, however large the
part may be, and one is wanting.”
Penhallow v. Doane, 3 Dall. 93.
2 Cooley's Comst. Tim. 40, citing
Blair v. Ridgely, 41 Mo. 63; 97 Am.
Dec. 248.
32 Wilson's Works, App'x A, p. 566;
McCrary on Elections (4th ed.), Sec. 13.
§ 129.] THE PEOPLE. 171
amination but little time need be spent upon theory or meta-
physical discussion of what ought to be the law governing the
matter, but Will, as far as possible, be confined to the practical,
visible facts.
The discussion of the capacities of that person we term “the
people’ necessarily involves the discussion of what is termed
Sovereignty. Let no one suppose that this question is an imprac-
ticable One and that it has no further value than the theoretical
or metaphysical, or a display of mental acrobatics or ingenuity;
for it will be seen that the question is one which lately, on sev-
eral important occasions, has been the only discussion indulged
in for the determination of great cases in court, and is liable to
arise as a practical question at any time.
The discussion of the “sovereignty of the people,” a term so
often used, and we might say so much abused, involves the very
foundation principle of this government. There was a time
When even to discuss the sovereignty was like entering the holy
of holies. Thus said Bacon: “Concerning government, it is a
part of knowledge secret and retired in both these respects in
which things are deemed secret; for some things are deemed
Secret because they are hard to know, and some because they are
not fit to utter. Very often the discussion is approached more
as the philosopher than as the lawyer.” And as the same great
Writer said: “As for the philosophers, they make imaginary
laws for imaginary commonwealths, and their discourses are as
the stars, which give little light because they are so high; but
the lawyers, they write according to the states where they live,
what is received law—not what ought to be law; for the wis-
dom of a law-maker is one and of a lawyer another.”
There are two methods of discussing sovereignty: one the
theoretical, star-gazing, phantom-chasing quests; another the
practical, which consists in nothing more or less than deter-
mining what acts the alleged sovereign can legally perform.
Thus Hale and Blackstone show us what the king and parlia-
ment had the legal right to do in the time of each, respectively,
and by the changes in legal power the sovereignty is seen to
change from the king, in the time of the former, to parliament
in the day of the latter." The course of the inquiry will be to
1 Const. Hist. Am. Law, 32.
172 THE PEOPLE. [$130.
determine, first, the nature of sovereignty; second, its existence
in our jurisprudence.
SEC. 130. Early Idea of Sovereignty in English Law.—The
question must be examined in the light of our own constitu-
tional history, and the references made to English history
are for the purpose of illustrating precisely the changes made
by our ancestors, who established our present constitution.
To fully appreciate the idea of sovereignty and the changes
which have taken place in the meaning of the word since its
introduction in England upon feudal principles, we should go
back so far at least as the time of Lord Bacon and Lord Hale.
Section. Three of Hale's analysis is entitled “Of such rights as
relate to the king’s person.” Under this he speaks of the king
thus: “Then, as to his natural capacity, as he is king; the
great concerns of government requiring a great assistance to
the king's natural capacity, the laws and customs of the king-
doms have furnished him with divers assisting councils, which
are of two kinds, viz. (to abbreviate): ordinary and extraordi-
nary councils. The Ordinary council consists of privy council,
council at law (the lord chancellor, etc.). This court had ju-
risdiction of appeals from the colonies." His extraordinary
councils are two — secular and ecclesiastical. The secular
councils are the house of peers and house of commons.”
“Section. Four, concerning the prerogatives of the king. Hav-
ing shown you what rights belong to the king's person (the
parliament being the council of the king), we come now to
those rights which concern his prerogatives, namely: Jura ma-
jestatis, vel summi imperii, that is, the right of dominion; potes-
tas jurisdictionis, vel miaºtº imperii, that is, the power of juris-
diction. -
“Section. Five, concerning the jura summa majestatis, or
rights of the king’s empire or dominion.
“Section, Sæ, of the potestas jurisdictionis, or the king's
right or power of jurisdiction. Hitherto of the jura summ?
&mperii, or rights of empire or dominion; now we come to the
jura miaºtº imperii, or potestas jurisdictionis, wherein the king
generally acts by his delegates, officers or representatives.””
1 The Sarah, 8 Wheat. 396, note; 2 Hale's Anal.
Penn v. Lord Baltimore, 1 Ves. 444;
Hale's Anal.
§ 131.] THE PEOPLE. 173
This brief summary discloses that the parliament was origi-
nally treated as Occupying a subordinate capacity as an advis-
ory council of the king, while the jura summi imperii, which
Blackstone calls the right of sovereignty, is not treated as re-
siding anywhere else but as an attribute of the king’s person—
he has the jura majestaffs, vel summ? &mperiö, or the right of
dominion, and the potestas jurisdictionis, vel mºat, imperº, that
is, the power of jurisdiction." The central idea is that, while
the king has this sovereign power over his subjects, there is no
legal power to control him; he was natural ruler, and all char-
ters of liberty take the form of grants from the crown confirmed
by parliament. “When a government,” says Judge Cooley,
“grants a constitution, it remains supreme over it.””
SEC. 131. The Divided Sovereignty of Blackstone's Time.—
IBetween the time of Hale and Blackstone great changes took
place. The convention parliament denied that the king was
the natural lord, destroying forever the doctrine of divine right.
But in his day, says Blackstone, “the law ascribed to the king
certain attributes of a great and transcendent nature, by which
the people are led to consider him in the light of a superior
being, and pay him that awful respect which may enable him,
with greater ease, to carry on the business of government.”
This, he says, is what I understand to be the royal dignity, the
several branches of which we will now proceed to examine.
First, the law ascribed to the king the attribute of sovereignty or
pre-eminence,” and all subjects owed to him allegiance, which was
a personal feudal tie. Thus, a single personal sovereignty is
retained, but the jura summº imperii, or the supreme power, is
transferred from the king to the parliament, whereby parlia-
ment is raised up as the supreme power 4 of the kingdom,”
whereof the king was a constituent part, and this unit, parlia-
ment being a body corporate, is invested with Supreme, irre-
sistible, absolute, uncontrolled authority.” “For to set bounds
is to distrust and destroy, and the law being incapable of dis-
trusting those whom it has invested with any part of the su-
preme power, since such distrust would render the exercise of
1 See also 1 Bllº. Com. 237. 4 Con. Hist. Am. Law, 33.
* Con. Hist. Am. Law, p. 31. 51 Cooley's Bik, 153. -
81 Cooley's Blk, 241. 6 Id. 49. See Cooley's notes (3d ed.).
174 THE PEOPLE. [$ 132.
that power precarious and impracticable, for wherever the law
expresses its distrust of abuse of power, it always vests a supe-
rior coercive authority in some other hand to correct it, the
very notion of which destroys the idea of sovereignty.”
Thus we see the modern English sovereignty in an omnipo-
tent parliament without any judge upon earth to define its powers,
which are without limit, because” it is said to set limits against
the abuse of power destroys the idea of sovereignty.”
In that day the limitations upon the king's prerogative were
certain and numerous.*
The privileges and powers of parliament were uncertain and
indefinite as well as unlimited.”
SEC. 132. Effect of Declaring Equality.—From the premises
furnished by this statement from Blackstone's treatment of
English law, we may now ask the question,--
When inequalities of rank are destroyed, and plainly defined
bounds are set upon the power of legislation, and an independ-
ent tribunal created which has jurisdiction at the instance of
an individual" to annul an act of the legislative body and to
keep all power within the defined limits, is not sovereignty
destroyed?
It will be admitted by all that sovereignty is not recognized
in American law in the same
1 1 Cooley's Bllº. 244.
21 Blk. 48.
3 Id. 244.
4 Id. 141, 233, 237; Miller on Con-
stitution, 67, note.
51 Blk, 163–64. This view of Black-
stone was not generally accepted by
the English people. The following
view of Junius is nearer to a just con-
ception: “The power of king, lords
and commons is not an arbitrary
power; they are the trustees, and not
the Owners, of the estate. The fee
simple is in us; they cannot alienate;
they cannot waste. When we say that
the legislature is supreme, we mean
that it is the highest power known to
the constitution; that it is the high-
est, in comparison with the other sub-
ordinate powers, established by the
laws. In this sense the word ‘su-
sense in which it was said to
preme' is relative, not absolute. The
power of the legislature is limited,
not only by the general rules of
natural justice and the welfare of
the community, but by the forms
and the principles of our particular
constitution. If this doctrine be not;
true, we must admit that king, lords.
and commons have no rule to direct
their resolutions, but merely their
own will and pleasure; they might
unite the legislative and executive
power in the same hands and dis-
solve the constitution by an act of
parliament.” Woodfall's Junius,
pp. vi., vii. See also Stockdale v.
Hansard, [1839] 9 Ad. & El. 1; 36 E.
C. T. 1.
6 Inglis v. Trustee, 3 Pet. 158; Mar-
bury v. Madison, 1 Cranch, 137.
§ 133.] TEIF PEOPLE. 175
exist under the English constitution, for it there existed as a
right, a substantial right, an absolute right in a corporate body,
a person, i. e., parliament.
Strange as it seems, allegiance was not due to the person pos-
sessed with the Supreme power in the state. It is apparent,
therefore, that in the English system sovereignty was not syn-
onymous with the supreme power in the state; that the former
was a limited power; the latter absolute and unlimited.
The king was a sovereign in the sense that all citizens of all
ranks were subject to him and owed allegiance, not to the peo-
ple of England, not to the laws of parliament, but to the person
of the king."
The king was the head of the kingdom, a constituent part of
parliament; he held his power of no one. Within the king-
dom he represented no one but himself; was personally account-
able to no one for what he might do; in fact, he held his office
as an absolute right. But after the convention of 1688 this
sovereign and king was not the supreme power in the state.
SEC. 133. Bactravagant Claim of Power at the Beginning of
the American Revolution.—When Mr. Blackstone wrote, he
asserts as the prevailing doctrine in England, that whatever
the forms of government, “however they began, or by what
right soever they subsist, there is and must be in all of them a
supreme, irresistible, absolute, uncontrolled authority, in which
the jura summº imperii, or the rights of sovereignty, reside.
By the sovereign power is meant the making of laws;
for wherever that power resides, all others must conform to
and be directed by it, whatever appearance the outward form
and administration of the government may put upon it.”
Parliament had sovereign and uncontrollable authority in the
making, confirming, enlarging, restraining, abrogating, repeal-
ing, reviving and expounding of laws concerning matters of all
possible denominations, ecclesiastical or temporal, civil, mili-
tary, maritime or criminal; this being the place where that
absolute despotic power, which must in all governments reside
somewhere, is intrusted by the constitution of these kingdoms.”
1 Inglis v. Trustee, 3 Pet. 158. in connection with the division of
21 Blk, Com, 49. power into legislative, judicial and
*Id. 160. The nature and extent of executive.
legislative power will be fully treated
176 THE PEOPLE. [$$ 134, 135.
Parliament could change the succession of the crown," re-
model the constitution, change the established religion,-in
fact, do anything not physically impossible. The dignity of
the parliament was by the same commentator asserted to rest
upon the uncertainty of its privileges and that it had a consti-
tution peculiar unto itself.” - -
SEC. 134. Contrary View in America.-The resistance of the
American colonies, well begun in 1765, Subsequently ripened
into an absolute and specific denial of the unwarranted assump-
tion of power by parliament. The consummation which re-
sulted in the Revolution resulted from the attempt by parlia-
ment to exercise the power of legislation over the colonies, in
violation of the ancient principles of consent and representa-
tion, and the assent to this by the king resulted in such a state
of affairs as to justify, according to the idea of the same com-
mentator, the right of revolution, of which there were several
precedents.”
If there were earls or lords or knights among the colonists
who rebelled, their rank ceased when allegiance was renounced,
and by the declaration of the whole that all were equal."
The colonists insisted upon two ancient principles, or rather
One principle embodying two ideas, as the basis of all law,
namely: that no law was of any effect which was passed with-
out the consent of the governed given by representatives.”
SEC. 135. How the People of the United States Obtained Su-
preme Power.—The framers of the Declaration of Independ-
ence evidently had in mind the precedent furnished by the
convention parliament of 1688–89, which declared the throne.
vacant," of which Blackstone says: Parliament held “that the
misconduct of King James amounted to an endeavor to sub-
vert the constitution, and not an actual subversion or total dis-
1 This the parliament did in 1688
without having any king in parlia-
intended to be remedied. Iredell, J.,
2 Dall. 432; Hans v. Louisiana, 134
ment.
21 Blk. Com. 164. This whole doc-
trine of Blackstone has long since
been discarded in England. It is in-
serted here upon the principle that
all acts and instruments of the people
(Declaration of Independence) must
be construed in the light of the sur-
rounding circumstances and the evils
TJ. S. 1.
31 Blk. Com. 211–245. See Wilson’s
speech in vindication of the colonies,
2 Works, 501.
4 Swift's System of Laws, 27; Jame-
SOn, Const. Con., Sec. 13.
52 Wilson's Works, 507, 508.
6 Inglis v. Trustee, 3 Pet. 158.
§ 136.] THE PEOPLE. 177
solution of government, which, according to the principle of
Mr. Locke, reduced society almost to a state of nature, leveled
all distinctions of honor, rank, offices and property, would have
annihilated the sovereign power, and in consequence would
have repealed all positive laws, and would have left the people
at liberty to have erected a new system of state upon a new
foundation of polity.”
SEC. 136. When Allegiance Was Renounced All Power Re-
turned to the People.— A very slight change in the words of
Blackstone describing the action of the convention parliament of
1688 describes the acts of the convention which framed the Dec-
laration of Independence. They therefore very prudently de-
clared the action of the king to amount to no more than an
abdication of government,” for they declare that the king had
repeatedly dissolved representative houses and refused to cause
others to be elected, “whereby the legislative powers incapable of
annihilation have returned to the people at large for their exercise.”
They also declared that the king had combined with others
(meaning the English parliament) “to subject us to a jurisdic-
tion foreign to our constitution and unacknowledged by our
law, giving his assent to their acts of pretended legislation.”
Then follows a recital of what these pretended acts of legisla-
tion were, namely: depriving them of trial by jury, altering
fundamentally the forms of government, and then this recital,
referring evidently to the declaratory act, “for suspending our
own legislature and declaring themselves (parliament) invested
with power to legislate for us in all cases whatsoever;” and
finally, “he has abdicated government here by declaring us
out of his protection and waging war against us.”
According to the theory of Justice Blackstone, that there
must exist somewhere, in all governments, an absolute despotic
power,” and which idea forms a distinctive branch of his defi-
nition of law, the colonists, by declaring independence and
equality, and that the legislative power had returned to the people,
put them in identically the position which he described where
he says the devolution of power to the people at large includes
in it a dissolution of the whole form of government estab-
11 Blk. Com. 213. 81 Blk. Com. 48, 162,
*Id. See Declaration of Independ-
©IlC6.
12
178 - THE PEOPLE. [$137.
lished by that people; reduces all the members to their original
State or equality, and, by annihilating the Sovereign power, re-
peals all the positive laws whatsoever." -
According to the doctrines of political law as they obtained
in England, the action of the colonists, as evidenced by the
Declaration of Independence, reduced the individuals who in-
habited the colonies to a state of nature; for, says Blackstone,
“when civil society is once formed, government at the same
time results of course, as necessary to preserve and keep that
society in order. Unless some superior be constituted whose
commands and decisions all the members are bound to obey,
they would still remain in a state of nature without any judge
wpon earth to define their several rights and redress their sev-
eral wrongs. But as all members which compose this society
were naturally equal, it may be asked, in whose hands are the
reins of government to be intrusted?””
SEC. 137. The Declaration of Equality Destroyed Personal
Sovereignty.— Here it is that the learned commentator con-
founds society with government, and very naturally; for with
him the parliament is the great body politic, the state, and
also the government, and the people are no more, no less, than
individual subjects.”
It is evident that the framers of the Declaration of Independ-
ence did not acquiesce in the view that such acts repealed all
their laws; for while they deny the powers of parliament over
them upon the ground that they are not represented, and de-
clare that the crown has abdicated the government, they do
not admit that their laws are repealed.* -
It was a well known rule that a change in form of govern-
ment, or in the persons who exercise it, does not repeal exist-
ing laws.”
At the time of the Declaration of Independence the colonists
affirmed that they had existing among them what they had
brought with them, developed and possessed as their birth-
right, the common law of England, which they contended was
11 Blk. Com. 213. also Webster's reply to Calhoun;
2 Id. 48, 213. Marshall’s argument in Ware v. Hyl-
* Shar. Blk. 48, 213, notes; 1 Wil- ton, 3 Dall. 211. --
son’s Works, 270, 271. 5 American Ins. Co. v. Bales of Cot-
*Society v. New Haven, 8 Wheat. ton, 1 Pet. 540; C. & P. Ry. Co. v. Mc-
464; Inglis v. Trustee, 3 Pet. 168. See Glinn, 114 U. S. 542–46.
§ 138.] THE PEOPLE. 179
founded upon two ancient pillars—consent and representa-
tion." Throughout all their subsequent acts and doings they
professed to observe the principle that all authority was de-
rived from the people they represented, either expressly given
or impliedly ratified,” thus excluding any idea of the supremacy
of any person or class over the whole mass or any member
thereof, and they did not agree that because there were no
inequalities of rank nor any orders of nobility they were and
must remain without laws.” It must be confessed that they
stood as Englishmen never stood before, equals in rank,
equals in right. -
SEC. 138. Consent of JEquals the Basis of American Law.—
The inhabitants of the colonies, by declaring that all men were
created equal,” and further declaring that governments must
derive their just powers from the governed, placed themselves
1 The binding force of an act of
parliament arises from the idea of
representation, and that every citi-
zen is a party to it and consents to
it, Middleton v. Crofts, 2 Atk. 654;
Matthews v. Burdett, 2 Salk. 673.
See also 1 Bllz. Com. 234; Swift's Sys-
tem of TLaws, p. 27; Inglis v. Trustee,
3 Dall. 158.
2 Ware v. Hylton, 3 Dall. 232. See
2 Wilson's Works, 566.
31 Wilson's Works, 321.
4 The Declaration is, not that all
men are created free and equal, or
born free and equal. The Declara-
tion is frequently misquoted. The
origin of the principle stated in the
Declaration, that “all men are Cre-
ated equal,” is frequently accredited
to French publicists, and the lan-
guage ascribed to Thomas Jefferson
and his associates who penned the
last draft of the document. Prof.
IHammond says: “The Declaration
beginning with the statement that
all men are born free and equal,” etc.,
and adds (in language translated al-
most literally from the writings of
Voltaire) (1 Ham. Blk. 276), thus
seeming to credit Voltaire with the
invention of the language of the Dec-
laration. An objection to Ham-
mond’s statement is that he himself
misquotes the words, and it is not
easy to see how a translation can be
literal — it may be liberal.” See 2
Wilson’s Works, 507, note.
It is well in such matters to be
exact. August 17, 1774, James Wil-
Son, in a speech in vindication of
the colonies, said: “All men are by
nature equal and free; no one has a
right to any authority over another
without his consent; all lawful gov-
ernment is founded on the consent
of those who are subject to it; such
consent was given with a view to
insure and to increase the happiness
of the governed above what they
could enjoy in an independent and
unconnected state of nature. The
consequence is that the happiness of
the society is the first law of every
government.” A Comparison of the
second clause of the Declaration of
Independence with this clause of the
address discloses that every essential
idea of the former is expressed in the
latter, except the right of separation,
which it would have been injudi-
cious to have then expressed. See 2
Wilson's Works, 507, 508; ante, § 11.
180 THE PEOPLE. [š 138.
in a position never occupied by Englishmen nor recognized by
the English constitution. .
The theory adopted by Blackstone, that both government
and law were swept away, was not admitted."
The lawyers of the colonists had imbibed other notions of
the nature of law and government. The solution of the prob-
lem of self-government involved an examination of that branch
of Blackstone's definition of law wherein it is asserted that the
“law is a rule prescribed by the supreme power in the state.”
This is the basis and pith of the whole matter.
In the great case of Chisholm v. Georgia the supreme court
went to the very root of this question of sovereignty while com-
menting upon the principle announced by Blackstone, which at
that time obtained sanction from the Crown party in England.”
Justice Wilson in his opinion says: “This position is only
a branch of a much more extended principle upon which a
plan of systematic despotism has been lately formed in Fng-
land and prosecuted with unwearying assiduity and care. Of
this plan the author of the Commentaries, if not the intro-
ducer, was at least the great supporter. He has been followed
in it by writers later and less known; and his doctrines have,
both on the other and this side of the Atlantic, been implic-
itly and generally received by those who neither examined
their principles nor their consequences. The principle is that
all human law must be prescribed by a superior. This principle
I mean not now to examine. Suffice it at present to say that
another principle, very different in its nature and operations,
forms, in my judgment, the basis of sound and genuine juris-
prudence; laws derived from the pure source of equality and
justice must be founded on the consent of those whose obedience
they require. The sovereign, when traced to his source, must
be found in the man.” ”
In his lectures before the Philadelphia Law School in 1791 he
had investigated that question with care. He pertinently in-
quires: “Is it essential to law that inferiority should be involved
in the obligation to obey it? Are these distinctions at the root
of all legislation? . . .
! Aºte, secs. 135, 136. 3 Chisholm v. Georgia, 2 Dall, 458.
*This was a new doctrine and was
not universally approved.
§ 139.] THE PEOPLE. 181.
“If I mistake not, this notion of superiority which is intro-
duced as an essential part in the definition of a law—for we
are told that a law always supposes one superior who is to
make it — this notion of superiority contains the germ of the
divine right.” . . . “Despotism by an artful use of superi-
ority’ in politics, and scepticism by an artful use of ‘ideas?
in metaphysics, have endeavored — and their endeavors have
frequently been attended with too much success — to destroy
all true liberty and sound philosophy. By their baneful effects
the science of man and the science of government have been
poisoned to their very fountains.” Professor Hammond says
truly: “By these arguments Judge Wilson has shown that
Blackstone's definition ranked him, in spite of himself, with the
supporters of divine right and absolute power.””
SEC. 139. Legislative Power Not Supreme or Absolute.—It is
in his fifth chapter, the subject of which is “Of Municipal
Law,” that he eradicates root and branch this heresy in polit-
ical doctrine. He says: “In regard to this point in the defini-
tion, I must beg leave to assign the epithet “dangerous and
unsound.’ It is of high import to the liberties of the United
States that the seeds of despotism be not permitted to lurk at
the roots of our municipal law.” He then examines Black-
stone's exposition of the legislative power and the powers of
parliament, and as to the idea that there is and must some-
where be absolute and despotic power, as implied by this defi-
nition, says: “Let us now pause and reflect. After what we
see can be done, after what we see has been done (in the United
States), in the delegation and distribution of the rights and
powers of society, can we subscribe to the doctrine of the
Commentaries, that the authority which is legislative must be
supreme 2 Can we consent that this doctrine should form a
first principle in our system of municipal law P Certainly not.
This definition is not calculated for the meridian of the United
States.”
Blackstone seems to have omitted to notice the opinion of
the judges of England that the binding force of an act of parlia-
ment arises from the idea of representation, and that every citi-
2en, as a party to it, consents to it.” *
11 Ham. Blk, note 11, p. 112. Atk. 65; Matthews v. Burdette, 2 Salk.
21 Wilson’s Works, 159–60. 672; 1 Shar. Blk, 147, note.
3 Id. 160–175; Middleton v. Cross,
182 THE PEOPLE. - [$$ 140, 141.
SEC. 140. Official Power is Never Allowed as a Personal Right.
Having seen the origin and nature of sovereignty and that its
essential attributes are inequality and unlimited power, and
noticed that inequality and personal superiority are repudiated
by the Declaration of Independence, it remains to inquire
whether this society of equals has created or recognized, as in-
hering in any person, body or class, the other attribute, viz.,
unlimited power. The first peculiar principle is the repub-
lican one, that official power is never eacercised as of personal
right." In England two branches of the legislative body ex-
ercise their authority as of individual right; that is, the king,
because he was king, had a voice in legislation, and likewise
the lords, because they were lords, had a voice, and when
they voted or acted they voted or acted for themselves and
in their own right and not as representing or acting for any
one else. Judicial and executive power were exercised by the
king as of right. The only representative body was the Com-
mons, and historically their right in the parliament was origi-
nally derived from a command to send representatives to
parliament, which ripened into a right by long usage.” In a
democracy, inasmuch as, theoretically, all may participate in
legislation, each exercises these rights for himself, and does not
delegate anything excepting the executive administration of
these democratic laws. In America, by reason of the equality
of the citizens, the principle naturally existed, by virtue of their
situation, that no individual Or body had any right or authority
over any one else, and it naturally resulted that no power or
authority should be exercised excepting by the consent of the
governed and through representatives chosen for that purpose.
SEC. 141. The People JEa:pressly Limit Their Power.—They
established also another novel principle. Experience had
taught them by many examples” that legislative power by the
many or the few might be abused, and the declaration that
the legislative power had returned to the people at large,
coupled with those just mentioned, namely, that government
derived its powers from consent, and that men were equal, re-
1 Swift's System of Laws, 27. * See a great many cited in argu-
2 Id. 26; Webster’s Argument in ing and deciding Stockdale v. Han-
Luther v. Borden, 7 How. 1; 2 Wil- sard, 9 Ad. & El. 1; S. C., 36 E. C. L. R. 1.
son’s Works, 573. t
$142.] THE PEOPLE. 183
sulted in a situation which is well expressed in the preamble
to the constitution of Massachusetts, wherein the people of
that state acknowledge the goodness of Providence in afford-
ing them an opportunity, deliberately and peaceably, without
fraud, violence or surprise, of entering into an original, explicit
and solemn compact with each other, and of forming a new con-
stitution of civil government for themselves and Our posterity,
and which, after explicitly declaring the rights of the citizens
of the commonwealth, they declare that they established it to
“the end that it might be a government of laws and not of
men.””
SEC. 142. All Legislative Power is Limited.—In America
there are recognized two distinct branches of legislative power.”
The One political, exercised originally, in the formation of the
United States constitution, by the electors as the immediate
representatives of the people, and now habitually exercised in
assemblages which have become familiar in the states under
the name of constitutional conventions, and properly so, because
they are confined in their actions to the enactment of funda-
mental or political legislation.* The other, the Ordinary legis-
lation exercised by congress or the general assemblages exist-
ing in all the states—always exercised by representatives
chosen by the electors.” None of the legislatures have any
power to make changes in the constitution. In England a
constitutional convention was unknown (except the revolution-
ary bodies unwarranted by the constitution)." Parliament pos-
sessed and exercised all legislative power. In America. Only
the people can make changes in the constitution. The people of
the United States have made provision for amendments pro-
posed to them by congress or devised by themselves at a con-
stitutional convention, though in all cases the legislative
assemblies must be consulted, while the people of the states
usually act in the latter mode. When the people make a con-
stitution they are acting politically; they are agreeing upon
fundamental laws for the purpose of limiting the exercise of
1 1780. in connection with the legislative
* Mass. Const. 1780; Marbury v. power.
Madison, 1 Cranch, 137. 4 See Grimkie's Argument, 2 Hill
81 Cooley's Blk. (3d ed.) 161. This (S. C.), 16.
subject will be more fully treated 5 U. S. Const., arts. I and V.
6 See Jameson on Const. Conv., § 8.
184.
THE PEOPLE. [$ 142.
authority; and it is settled law that they can and have set limits
upon the extent and mode of law-making even by themselves.
The new principle which pervades all of their acts, viz., that
no power shall be exercised as of personal right, but officially
as a trust, resulted in an entirely new application of the old
idea of representation, and put a new aspect upon the doctrine
of consent very different from the old idea.
It was the volun-
tary consent of equals, not the submission of subjects.
They did not cast off old principles and disregard ancient
landmarks.
anarchy, but the liberty of law.”
12 Dall. 472 (Jay, J.).
2 Cooley's Principles, 23; Dodge v.
Woolsey, 18 How. 331. “The clear-
est and most concise analysis of the
general features of our political sys-
tem may be found in the celebrated
argument of the eminent statesman
and great constitutional lawyer, Mr.
Webster, in the case of TLuther v.
Borden, 7 How. 1, in the supreme
court of the United States, which
arose out of what is known as the
‘Dorr Rebellion.” He said in sub-
stance that the only source of polit-
ical power is in the people; that they
are sovereign, that is to say, the ag-
gregate community, the accumu-
lated will of the people, is sovereign,
but that it is not the sovereignty
which acts in the daily exercise of
sovereign power. The people Cannot
act daily as the people. They must
establish a government, invest it
with so much of the sovereign power
as the case requires; and this sov-
ereign power being delegated and
placed in the hands of the govern-
ment becomes what is familiarly
called the state. The next principle
is that, as the exercise of legislative
power and the other powers of the
government immediately by the peo-
ple themselves is impracticable, they
must be exercised by representatives
of the people. The basis of this rep-
resentation is suffrage. The right to
The liberty of our fathers was not the license of
Long before the constitution,
Choose representatives is every elect-
or's part in the exercise of sovereign
power. To have a voice in it, if he
has the proper qualifications, is the
portion of political power belonging
to every elector. That is the begin-
ning. That is the mode in which
power emanates from its source.
and enters into the hands of con-
Ventions, legislatures, courts of law,
and the chair of executive. Suf-
frage is the delegation of the power
of an individual to some agent. Then
follow two other great principles of
the American system. The first One.
is that the right of suffrage shall
be guarded, protected and secured
against force and against fraud; and
the second is that its exercise shall
be prescribed by previous law, that
every man entitled to vote may vote;
that his vote may be sent forward
and counted, so that he may exer-
cise his part of sovereignty in com-
mon with his fellow-citizens. There
is another principle equally true,
that the people often limit them-
selves, and set bounds to their own
power, to secure the institutions.
which they have established against
the sudden impulses of mere ma-
jorities, and also that they may limit
themselves by their constitutions in
regard to the qualifications of the
electors and the qualifications of the
elected. Webster's Works, vol. 6,
§§ 143, 144.] THE PEOPLE. - 185
James Wilson in the Pennsylvania convention asserted that
“the law is the common standard by which the excesses of pre-
rogative as well as the excesses of liberty are to be regulated
and conformed,” plainly indicating that they understood both
that power and liberty might have excesses, and were to be regu-
lated.
The formation and existence of state governments ever since
the Declaration of Independence were based upon voluntary
Consent."
SEC. 143. The Natural Right of Revolution is Recognized.—
There is inherent in the people a justifiable right (a sover-
eignty, if one, chooses so to term it) to abolish or alter the
existing form of government whenever it is found inadequate
to the purposes intended. It ought not to be denied by us,
having been asserted by our forefathers and exercised by them.
But it is quite as frequently forgotten that this is nothing
more or less than a justification for the exercise of revolu-
tion. A minority may as justifiably rebel as a majority;
indeed, the colonists were not a majority of King George's
subjects.”
SEC. 144. The Original Consent Required Was Individual
Consent.— All fellow-subjects among the colonists who so de-
sired were allowed to retain their allegiance to the king.” But
when it is said that government is established by consent, the
question arises, By the consent of whom? The consent of the
people as a body or the consent of the individuals? It is an
axiom in American law that government derives all its just
powers from the consent of the governed, and not from the sub-
mission of subjects to a government promulgated by a supreme
power. As a political fact, as a practical fact, as a legal fact,
the consent involved is the consent of the individual; and this.
established the supreme law and made it obligatory upon each
and all. How was consent given? Judge Sharswood says:
pp. 221–227, cited by the court with v. Hunt, 1 Hill (S. C.), 172; Bliss on
approval in In re Duncan, 139 U. S. Sov., p. 143; Truther v. Borden, 7.
461. See Vanhorne's Lessee v. Dor- How. 1.
rance, 2 Dall. 308.” State v. Cun- 31 Shar. Blk. 47, note. -
ningham, 81 Wis. 440, 497, 498. 4 Fed., No. 40. The Declaration of
1 Ware v. Hylton, 3 Dall, 232. Independence asserts it.
*Jameson, Const. Con., § 239; State
186 THE PEOPLE.
[$ 145.
“It is to be remarked that in the freest nations, even in the
republics which compose the United States, the consent of the
entire body of the people has never been expressly obtained.”
“The people’’ comprise all of the men, women and children of
every age and class, but they were not one people in the same
sense until the constitution was adopted. A certain number
of men have assumed to act in the name of all the community."
SEC. 145. The Right of Earpatriation Allows the Constant
Jºcercise of Assent or Dissent.—“Very plainly, then, it is essen-
tial to the American doctrine of consent to hold that every
citizenshall have a right at any time to expatriate himself.” How
can the consent of the governed be in any sense implied if the
citizen is coerced to remain a member of the state through all the
changes which its form of government may undergo, whether
with or without his approbation (that would be submission). It
is clear that in any such case he may remove himself and his
property to any country he chooses, and he must be allowed
reasonable time to make his election. This course was adopted
at all periods of the American Revolution. All persons, whether
natives or inhabitants, were considered entitled to make their
choice—either to remain subjects of the British crown or to be-
come citizens of one or other of the United States. This choice
was necessarily to be made within a reasonable time.”
The majority of a colony, upon assuming to be an independ-
ent state, did not assume, against the will of the minority of
the inhabitants, the right to make them members of the state.
1 Ware v. Hylton, 3 Dall, 232; Fed.,
NO. 40.
* “Prima facie, and as a general
rule, the character in which the
American antervati are to be consid-
ered will depend upon, and be deter-
mined by, the situation of the party
and the election made at the date of
the Declaration of Independence, ac-
cording to our rule; or the Treaty of
Peace, according to the British rule.
But this general rule must necessa-
rily be controlled by special circum-
stances attending particular cases.
And if the right of election is at
all admitted, it must be determined
in most cases by what took place
during the struggle, and between the
Declaration of Independence and the
Treaty of Peace. To say that the
election must have been made before,
or immediately at, the Declaration
of Independence, would render the
right nugatory. The doctrine of per-
petual allegiance is not applied by
the British courts to the American
antenati. This is fully shown in the
late case of Doe v. Acklam, 2 Barn.
& Cres. 779.” Inglis v. Trustees of
Sailor's Snug Harbor, 3 Pet. 121.
81 Shar. Blk. 47, note 11.
§ 146.] | THE PEOPLE.
187
In order, therefore, to make such persons members of the state,
there must be some overt act of consent on their own part to
assume such a character, and then, and then only, could they
be deemed to have determined their right of election." The
consent of each individual could in no other mode be practi-
cally ascertained.
SEC. 146. All Political Action Was Taken in the Name of
the People.— In all societies some must Originally assume to
act. In some societies those who assume to act assume to act
in their own right, thus usurping the right to govern. This
is the origin of feudal sovereignty.” In the formation of our
governments, by express declaration, those who assumed to
act, in each step towards the formation of this government
have assumed to act, not on their own behalf, not of right,
but in a representative capacity. “In the name of the good
people of these colonies,” or in the name of the people. It
is only such acts as are professedly performed that can, ac-
cording to the rule of agency, be ratified. By accepting and
ratifying such acts, they are made the acts of each individual.
The doctrine of consent, by exercising the right of election
after a reasonable period within which to exercise it, is the
basis of each man’s consent to the form of government.* The
fact of acknowledging this right of choice involves the admis-
sion, on the part of those assuming to act, that they were act-
ing for others. o
1 Inglis v. Trustees et al., 3 Pet. 158, a convention, and thus submitting
2 Chisholm v. Georgia, 2 Dall. 419. that instrument to the people. But
3 Declaration of Independence. the people were at perfect liberty to
4 Declaration of Independence; In- accept or reject it, and their act was
glis v. Trustees, 3 Pet. 160; Talbot v. final. It required not the affirmance
Jansen, 3 Dall. 13. “From these
conventions the constitution derives
its whole authority. The govern-
ment proceeds directly from the peo-
ple; is ordained and established' in
the name of the people; and is de-
clared to be ordained ‘in Order to
form a more perfect union, establish
justice, insure domestic tranquillity,
and secure the blessings of liberty to
themselves and their posterity.’ The
assent of the states, in their Sover-
eign capacity, is implied in calling
and could not be negatived by the
state governments. The constitu-
tion, when thus adopted, was of com-
plete obligation, and bound the state
sovereignties. It has been said that
the people had already Surrendered
all their powers to the state sover-
eignties, and had nothing more to
give. But Surely, the question
whether they may resume and mod-
ify the powers granted to govern-
ment does not remain to be settled
in this country. Much more might
ISS TELIE PEOPLE. [S 147.
The Convention of 1787 Acted in Autre Droit."—The action
of the convention of 1787 and the adoption of the present con-
stitution has been said to have been revolutionary; but the
delegates who met in convention were careful not to violate
the fundamental principle which had been adopted by all bodies
of Americans as the pole-star of all their acts when in conven-
tion assembled, namely: That all persons and all assemblages
assuming to act or advise should assume to act in the name of
the people, and while so acting should never perform an act
having any force or validity from the mere performance, deriv-
ing force and validity and life by virtue of previous instruction
or subsequent ratification of the people, a principle guarantee-
ing absolute safety; for, whether beyond the constitutional
bounds or within them, the rejection of the proposed rule in
One case nullified the act, and the approbation of it in the
other had the effect of blotting out antecedent errors and
irregularities.”
SEC. 147. The Sanction of the Constitution Was Its Adoption
by the People.—Therefore, the present constitution, being before
its adoption an unauthorized proposition, was submitted to the
people for adoption, assent and ratification, and not published
and prescribed.” The convention was not a convention of the
people of the United States.” There was no authority to call
a general convention of the people.” Indeed, Rhode Island
never took part in the convention and sent no delegates to it.
It was submitted to the citizens of the thirteen states, between
whom existed a league, not because there was any authority
from each of the thirteen to formulate a plan and submit a
draft, but simply because of the plenary power of any body of
the legitimacy of the general govern-
ment be doubted, had it been cre-
ated by the states. The powers dele-
gated to the state sovereignties were
to be exercised by themselves, not
by a distinct and independent Sov-
ereignty created by themselves. To
the formation of a league, such as
was the Confederation, the state sov-
ereignties were certainly competent.
But when, ‘in order to form a more
perfect union,’ it was deemed neces-
sary to change this alliance into
an effective government, possessing
great and Sovereign powers, and act-
ing directly upon the people, the ne-
cessity of referring to the people, and
of deriving its powers directly from
them, was felt and acknowledged
by all.” McCulloch v. Maryland, 4
Wheat. 403, 404.
1 In the right of another.
2 Fed., No. 40.
3 Duer’s Outlines, sec. 859.
4 Fed., No. 40.
5 Baldwin’s Views, 11 Pet. (App.) 19.
§§ 148, 149.] THE PEOPLE. - 189
freemen to submit a proposition to any other body or individ-
ual, when impelled to do so from the exigency of the occasion.
It did not bind any individual till he assented to it. It did not
affect any state or government, therefore, till its citizens, through
their representatives, assented to it. It did not bind the peo-
ple of any state until and unless eight other states joined with
them. It then only bound those who adopted it, and when thus
adopted by nine states it dissolved the league and ceased to
be a proposal, and became a constitution.
SEC. 148. The Act of Adopting the New Constitution Violated
the Compact of Confederation Between the States.—Because it did
not require the ratification of all the states it was in disregard of
the articles of confederation, which provided that the compact
could not be superseded without the unanimous consent of the
parties to that instrument, and North Carolina and Rhode
Island not ratifying it (the latter not taking any legal steps in
recognition of it), had the legal right to insist that the act was
revolutionary, and so it was." -
SEC. 149. The Autonomy of the States Was Preserved.— But
the ratification did not dissolve the states. The citizens of
the ratifying states became citizens also of the new state called
under the old name—the United States.”—and then, and then
only, were the people created one people and one nation.” The
old confederacy was, a league between states and depended
upon state action, having no means of enforcing individual
obedience. The constitution of the United States creates di-
rect relations between the United States government and indi-
viduals." Webster, in his reply to Calhoun, says: “The con-
stitution utters its behests in the name and by the authority
of the people, and it exacts not from states any plighted pub-
lic faith to maintain it. On the contrary, it makes its own
preservation depend on individual duty and individual obliga-
tions.” The states cannot, by neglect, stop the wheels of gov-
ernment. The individual oath of office of the state legislative
1 Duer's Outlines, sec. 855; Cooley's 4 white v. Hart, 13 Wall. 650; Ire-
Prin. .16; Fed., Nos. 40–43. dell, J., in Chisholm. v. Georgia, 2
2 Scott v. Sanford, 19 How. 393; Dall. 335.
White v. Hart, 13 Wall. 650. 5 Iredell, J., in Chisholm v. Georgia,
3 Miller on Const. 83; Baldwin’s 2 Dall. 435. . -
Views, 11 Pet. (App.) 19.
190 THE PEOPLE. [$$ 150, 151.
bodies to support the constitution of the United States com-
pels them to act at stated terms."
SEC. 150. The Relation of the People, the States and Minor-
ities.—It is often said that the people are sovereign, that is,
the whole mass is sovereign because they created the constitu-
tion; and it is asked, Is not the creator sovereign to the creat-
ure? But the people of the old union did not act en masse or
as citizens of one great body politic in creating the constitu-
tion.” Rhode Island never participated and North Carolina.
did not ratify. Confusion about this question arises from
treating different things as the same thing because they are
called by the same name. The political unity was created by
the constitution, consisting of eleven states and the people
thereof; that is, the artificial person as we see it now, then
came into being, and then, for the first time, were known citi-
zens of the United States.” The members of the old confeder-
acy were states of the new nation, individuals and states. It
is their universal consent to the terms of this instrument which
creates the body politic called the United States.
SEC. 151. Republican Form of Government Described.— In
England government was based on sovereignty; here it is de-
rived from citizenship. There obedience depended upon sub-
jection; here it depends upon consent. Submission and alle-
giance imply inequality; consent assumes equality. Allegiance
was a badge of inferiority; citizenship is the charter of equality.
In the United States there are citizens but no subjects. There
is no Oath of allegiance other than to support the constitution
and laws.” To the constitution of the United States the term
Sovereignty is unknown. Government is exercised by magis-
trates who perform official duties and exercise delegated pow-
ers. By destroying inequality and applying the doctrine of
delegated power to all subjects and departments of government
and establishing a public service without rank or jura potestas,
they destroyed the idea of sovereignty" and established a gov-
1 Ibid.; Duer’s Outlines, 214. See 3 Miller on Const. 83; Scott v. San-
also Ex parte Yarbrough, 110 U. S. ford, 19 How. 393; White v. Hart, 13
651. Wall. 650.
*Worcester v. Georgia, 6 Pet. 515– 4 State ex rel. McCready v. Hunt,
569; Cooley's Lectures (Ann Arbor, 2 Hill (S. C.), 1.
1889), p. 38; Von Holst's Const. Law, 5 Ham. Blk. 141; Webster's Reply
48; Fed., No. 40. y to Calhoun.
§ 152.] - THE PEOPLE. 191.
ernment republican inform, to define which so exactly that noth-
ing could be added and nothing taken away is perhaps beyond
the wit of man. Republicanism requires, as asserted, that mag-
istracy be derived from the great body of the society, not from
an inconsiderable portion or from a favored class of it; and it
is sufficient for such a government that the magistrates be ap-
pointed directly or indirectly by the people, and that they hold
their offices for a limited period or during good behavior."
The Form of Government is Wot Democratic.—It is frequently
forgotten that this government is not democratic in form or in
substance, the difference being that in a democracy the people
as a mass have and may evereise political power. In a repub-
lic, while all power is derived from the great body of the people,
they never in a single instance actually participate as a body
in the administration of government.” Representation is an
essential feature of the republic; power must be delegated or
lie dormant.”
SEC. 152. Limitation of All Power.— The assent of each indi-
vidual is coupled with the agreement of every other individual
that they all and each shall be bound by the terms expressed
in the constitution. By adopting the acts done in convention
On their behalf and expressed in the proposal for a constitution,
the people in their double capacity, as individuals and citizens
of states,” established a constitution providing for a common
government over all concerning certain objects, preserving the
separate state governments for other objects, each of which was
to be perpetual and each supreme within the limits prescribed,
and this proposal, when assented to, changed its nature from a
proposal to a constitution; and this constitution is the only
grant, warrant, charter or authority to which any person,
whether body politic, class or individual, can refer as justifying
the assertion and exercise of power. The intention was ex-
pressed in the preamble to form a more perfect union (of indi-
viduals and states), establish justice and secure liberty; and the
more perfectly to do this, they declare that the constitution
and laws made in pursuance of it, and all treaties made under
1 Fed., No. 43; Chisholm v. Georgia, 3 Gibbons v. Ogden, 9 Wheat. 1.
2 Dall. 457. 4 Dodge v. Woolsey, 18 How. 331.
* Jay, C. J., in Chisholm v. Georgia, -
2 Dall, 452.
192 - THE PEOPLE. [$152.
the authority of the United States, shall be the supreme law of the
land, and the judges in every state bound thereby, notwithstand-
ing any state constitution or state laws in contravention thereof."
It is sometimes asserted that sovereignty in the people ex-
ists as an Original right, inhering as a necessary attribute, and
this claim takes the form that the people have absolute, uncon-
trolled power and can constitutionally do anything. If this
be true, then Blackstone was right, and absolute, uncontrolled,
despotic power exists in this government.
When a government, whatever the form, grants a constitu-
tion, it necessarily remains supreme over it.”
Constitutional Amendments.--When a constitution results
from the agreement of equals, it is entirely consistent with
their dignity that they obligate themselves to the observation
of its provisions in reference to changes or modifications, and
it is essential to its character as a constitution that it be the
Supreme rule of conduct for all persons under all circumstances.”
The doctrine of the inherent, absolute power of the people is in
substance, though differing somewhat in form, that the right to
adopt a constitution necessarily includes the right to abolish,
reform and to alter any existing form of government; that this
right exists as a right of sovereignty and is not derived from
human authority, and may be and must be effected to such an
extent and in such manner as the people may determine. It is
now settled that such action is the exercise of revolutionary
powers and not sovereignty.” That the people of the United
States can make no changes in the United States constitution
except in the manner provided by that instrument for consti-
tutional amendments,” and that the people of the United States
are limited as to what changes (in form or substance) may be
made by the provisions of the constitution." That by the con-
stitution the people divested themselves of the sovereign power
of making changes in the fundamental law except by the method
in the constitution agreed upon." - -
1 Const., art. VI; 2 Hill (S. C.), 1. Bain, 75 Pa. St. 39; Koehler et al. v.
2 Cooley's Const. Hist. Am. Law, 31. Hill, 60 Iowa, 568; State v. Young, 29
3 Dodge v. Woolsey, 18 How. 331. Minn. 509.
4 Cooley’s Const. Hist. Am. Law, 31. 6 Iredell, J., in 2 Dall. 419.
5 Luther v. Borden, 7 How. 1; State 7 Cooley's Prin. 23; Gibbons v.
v. Hunt, 2 Hill (S. C.), 1; Wells v. Ogden, 9 Wheat. 1.
§ 152.] TEIE PEOPLE. 193
That any attempt by the whole people, or by any majority
of them, or any portion of them, to accomplish the same in
any other mode, would be legally nugatory, unconstitutional
and revolutionary, and that the people have expressly guarded
themselves against the will of majorities and have rendered
themselves incapable of destroying the autonomy of the states,
by guaranteeing to each a republican form of government."
“A government,” says Justice Miller, “which holds the lives
and liberty and the property of its citizens subject at all times
to the absolute disposition and unlimited control of even the
most democratic depository of power is after all a despotism.
It is true it is a despotism of the many, of the majority, if you
choose to call it so, but it is none the less a despotism. It may
well be doubted if a man is to hold all that he is accustomed
to call his own, all in which he has placed his happiness, and
the security of which is essential to that happiness, under the
unlimited dominion of others, whether it is not wiser that this
power should be exercised by one man than many. The theory
of Our government, state and national, is opposed to the deposit
of unlimited power anywhere.”
! See Amendment of State Consti-
tutions.
Constitution — Amendments to.—
“The constitution is supreme over all
Of them, because the people who
ratified it have made it so; conse-
quently, anything which may be
done unauthorized by it is unlawful.
But it is not only over the depart-
ments of the government that the
Constitution is supreme.
the extent of its delegated powers,
Over all who made themselves par-
ties to it, states as well as persons,
within those concessions of sovereign
powers yielded by the people of the
States when they accepted the con-
stitution in their conventions. Nor
does its supremacy end there. It is
Supreme over the people of the
United States, aggregately and in
their separate sovereignties, because
they have excluded themselves from
13
It is so, to
any direct or immediate agency in
making amendments to it, and have
directed that amendments should be
made representatively for them, by
the congress of the United States,
when two-thirds of both houses shall
propose them, or where the legisla-
tures of two-thirds of the several
states shall call a convention for pro-
posing amendments, which, in either
case, become valid, to all intents
and purposes, as a part of the consti-
tution, when ratified by the legis-
latures of three-fourths of the sev-
eral states, or by conventions in
three-fourths of them, as One or the
other mode of ratification may be
proposed by congress.” Dodge v.
Woolsey, 18 How. 331 (348).
2 Loan Ass’n v. Topeka, 20 Wall.
662. See In re Duncan, 134 U. S. 449–
461.
CHAPTER VIII.
THE PEOPLE OF THE STATES.
SEC. 153. Identity of the People.— Attention may now be
directed to another entity possessing rights, powers and duties,
namely, that other great person called a state, using the latter
word in its familiar sense as designating a member of the na-
tional union.
The individuals constituting a state have as such no political
but only civil rights, except as an Organized body, that is, ex-
cept when acting by its recognized organs. The entire popula-
tion of a state already constituted (that is, Organized under a
constitution), were it assembled on some vast plain, could not
constitutionally pass a law or try an offender."
States existed prior to the adoption of the constitution and
still exist as component parts of the greater person—the United
States. One of the provisions of the constitution, and one doubt-
less without which its adoption could not have been obtained,
is the clause guaranteeing to each of the states a republican
form of government. This clause in the constitution operates
in a double way. Pt is a limitation upon the powers of the
people and of the United States in favor of the people of
the states, and secures the preservation of the autonomy” of the
states.”
1 Jameson, Const. Conv. 237.
2See Bouvier’s Law Dict., tit. Au-
tonomy.
8 Texas v. White, 7 Wall. 725. “The
people of each state compose a state,
having its own government and en-
dowed with all the functions essen-
tial to separate and independent
existence,’ and that ‘without the
states in union there could be no
such political body as the United
States.” Not only, therefore, can
there be no loss of separate and in-
dependent autonomy to the states
through their union under the con-
stitution, but it may be not unrea-
sonably said that the preservation of
the states and the maintenance of
their governments are as much
within the design and care of the
constitution as the preservation of
the Union and the maintenance of
the national government. The Con-
stitution, in all its provisions, looks
to an indestructible Union composed
of indestructible states.” Texas V.
White, 7 Wall. 725. See Reconstruc-
tion.
§§ 154, 155.] THE PEOPLE OF THE STATEs. 195
SEC. 154. States Are Essential Constituents of the Nation.—
It is also a limitation upon the powers of the majority of the
people of a state in favor of each and every citizen thereof,
insuring to the individual that the form of government of the
state, as well as of the nation, shall be republican. Doubtless it
had its origin in the jealousy of the states of the danger of en-
croachment of the nation upon the powers of the states;' but in
actual operation, it justified the prediction that the encroach-
ment would most likely come from the states.”
The reconstruction of the seceded states was largely based
upon this provision.”
SEC. 155. Position of the State as to Independence.—It was
at first generally supposed that the sovereignty of the people
of the states, even in the qualified sense as designating their
independence and exemption from the jurisdiction or control of
any higher authority, was destroyed or given up by entering
into the Union, and it is settled law that a state may be sued
in a United States court. From this fact alone, it follows that
if the obligation to submit to a tribunal not created by itself
is inconsistent with sovereignty, then a state is not, in that
sense, sovereign. It was decided by the supreme court that the
people of the United States had the power to create and had
created a tribunal having jurisdiction over a state at the suit
of an individual.”
Although that suit was one against a state by a citizen of
another state, it is now settled that it is immaterial whether
the citizen suing is a resident or a non-resident of the state
sued.” That according to the letter of the constitution, a state
might be sued by an individual is admitted by all;" but by an
amendment of the constitution, the courts are prohibited from
so construing the constitution; the provision being that the
constitution must not be construed as giving jurisdiction to the
United States courts over a suit between a citizen of one state
and another state.
1 Miller, Lect. On Const. 596. states as conquered persons having
2 Ibid. no rights. See Reconstruction.
3 Texas v. White, 7 Wall. 700; 4 Chisholm v. Georgia, 2 Dall. 416.
"White v. Hart, 13 Wall. 646. The re- 5 Hans v. Louisiana, 134 U. S. 1.
port of the Committee on Recon- 6 Baldwin’s Views, 11 Pet. (App.) 19.
struction treats the Subdued seceding
196 THE PEOPLE OF THE STATES. [$$ 156, 157.
SEC. 156. A State Cannot be Swed by an Individual Ea:cept
by Consent.—The decisions have been uniform that a state
cannot be sued in any court by an individual without its con-
sent." There have been dicta that the reason for the eleventh
amendment was because it was incompatible with the Sover-
eignty of the state, in analogy to the rule of the English law
that the king could not be sued in his own court; but when
we consider that the court which was supposed to have the ju-
risdiction is not a court created by a state, and that the court
in which it is said a state cannot be sued by an individual has
jurisdiction to entertain a suit against a state by another state,
or appellate jurisdiction of a suit by a state against an individ-
ual,” the analogy cannot be made to hold good; and if the de-
nial is attempted to be justified upon the other reason, that it
is incompatible with the dignity of a state to be sued, then the
fact that it may legally be sued in the same court leaves re-
maining but the flimsy pretext that it is incompatible with the
dignity of a state to be sued by a citizen. The United States
and many states now allow it.* A sufficient reason for the cir-
cumstance is found in the expression, “it is the written law,”
and it is quite immaterial what motives induced the adoption
of the eleventh amendment.
SEC. 157. An Individual Contracts with a State at his Peril.
It is now well settled that there is no judicial remedy in favor
of an individual against a state to compel the performance of a
contract, though it is settled that a state can pass no law im-
pairing the obligation of a contract once made. However, one
dealing with a state need not complain that there is any in-
justice in this condition of the law, it being well settled that
the only security for state loans rests on the plighted faith of
the state as a political community; that is, upon the same basis
as contracts with independent governments, the same basis,
for example, as loans made by the United States under the
authority of congress; that is to say, the good faith of the gov-
ernment making the loan and its ability to fulfill its engage-
ment. The party making the contract, being presumed to know
1 Hans v. Louisiana, 134 U. S. 1; 3 Chappell v. United States, 34 Fed.
State v. Young, 29 Minn. 509. Rep. 673.
2 Cohen v. Virginia, 6 Wheat. 264. 4 State v. Young, 29 Minn. 509;
e’ Hans v. Louisiana, 134 U. S. 1. -
§§ 158–161.] THE PEOPLE OF THE STATES. 197
the law, is not legally injured by being refused an action in
court to enforce the obligation.
SEC. 158. The Authority of the States.—The people of the
states are supreme in their authority over all subjects of govern-
ment within the boundaries of the state which are not dele-
gated to the United States government.
SEC. 159. Limitation on Their Mode of Action.— But even
within these limits and in regard to these subjects, Over which
they have undoubted jurisdiction, the people of the states have
no absolute, uncontrolled authority. The people of a state can
only act through the legally constituted agencies of the law.”
They cannot change, alter or amend the constitution except in
the modes provided by the existing law;” and these are either
through the action of a constitutional convention or the sub-
mission of amendments by the legislature, as pointed out by the
constitution; but the constitutional convention cannot act in-
dependently of the existing state authority.
SEC. 160. The National Constitution is Supreme.—A provis-
ion in the constitution of a state in contravention of the con-
stitution of the United States is void, though contained in the
constitution when the state is admitted into the Union.
An amendment of the state constitution in contravention of
the United States constitution is void, though accompanied
with all the formalities of the law.”
SEC. 161. Amendments of State Constitutions, though all new
provisions are within the unquestioned powers of the people,
which are adopted without observing the forms prescribed in
the existing state constitution, are void.* g
An amendment of a state constitution, all the provisions of
which are within the undoubted powers of the state, which are
not made through the ordinarily existing state agencies for
determining the will of the people, is revolutionary and void.”
The people of a state cannot lawfully secede from the Union.”
They may be compelled to establish a government republican in
form."
1 Luther v. Borden, 7 How. 1. 4Koehler v. Hill, 60 Iowa, 568.
2 Koehler et al. v. Hill, 60 Iowa, 568; 5 Luther v. Borden, 7 How. 1;
In re Duncan, 139 U. S. 449–61. JKoehler v. Hill, 60 Iowa, 568.
*State v. Hunt, 2 Hill, 1; State v. 6 Texas v. White, 7 Wall. 721.
Young, 29 Minn. 509. 7 Id.; White v. Hart, 13 Wall. 646.
198 THE PEOPLE OF THE STATES. [šš 162, 163.
The people of a state cannot act en masse — they must choose
representatives."
The people act immediately through electors or voters, who
are the immediate representatives of the great mass of the
people.
SEC. 162. Nature of Suffrage.— The right to vote in Ameri-
can commonwealths is not of the same Origin as the right to
vote in England.” This will be examined under the qualifica-
tions of citizens to vote. Suffice it to say here, that the right
to vote is not a natural right — it is purely conventional.”
SEC. 163. Voters are Agents of the People, Not Ruler.— Some-
times when we speak of the people of a state we do not allude
to the whole body of inhabitants, but generally to the people
in connection with the exercise of political power. It is said
by an able lawyer that then the mind turns from the whole
body to that portion of them in whom is constitutionally vested
the right to exercise the power of suffrage." The decision in
that case seems to have been the basis for the expression by a
text-writer that, as a practical fact, the sovereignty is vested in
those persons who are permitted by the constitution of the state
to exercise the elective franchise.”
Neither the argument of Mr. Drake nor the opinion of the
court warrants such a conclusion. The judge of the court in
that case drew the line sharply between the right of the English
freeholder to vote as an incident to his tenancy in burgage, under
which doctrine the right to vote was a vested right, and clearly
explained the difference between the privilege or franchise in
America, saying the right to vote is not vested—it is purely
conventional.” Noticing that in some states those who were
Originally allowed to vote had been by the constitution divested
Of the power, he said: “We presume the law-makers consid-
ered that they were not discreet persons to be intrusted with
the ballot.”" The electors, as an actual fact, as a practical
1 Jameson on Const. Conv., §§ 237, * Cooley's Const. Lim., p. 40.
348. * Blair v. Ridgley, 41 Mo. 63. See
*Luther v. Borden, 7 How. 1; Blair this question exhaustively examined
v. Ridgley, 41 Mo. 63; State v. Hunt, in a note by the author, 2 Wilson's
2 Hill (S. C.), 1. See McCrary on Works, 566. Also McCrary on Elec-
Elections, Š 9, 10, 11. tions, supra.
*Ibid.; Jameson, Const. Conv. 331–2. 7 Blair v. Ridgley, 41 Mo. 63.
*Mr. Drake in argument, Blair v.
Ridgley, 41 Mo. 63.
§ 164.] THE PEOPLE OF THE STATES. 199
fact, as a legal fact, are the agents and representatives of the
people." .
SEC: 164. The New Meaning of Sovereignty.— There are ju-
rists of high standing who insist that sovereignty does not mean
anything in America, and should be dropped from our legal
nomenclature, but it is not the province of an author to dic-
tate what our nomenclature shall be. A text-writer must take
the terms of the law as found in daily use in judicial argu-
ments, and his humble province is to ascertain and explain,
as near as may be, the sense in which the term is appropriately
used. .
Sovereignty, like many other words which have come to us
from other days, has changed with the development of the
law, and the idea associated with the use of the word is not
at all synonymous or even analogous to the old idea which
the word represented. Even so, this word “sovereignty” in
American law, though not found in the constitution,” has been
in constant and daily use in American law, but it is disassoci-
ated from both the ideas which it bore in the English law at
the time of the Revolution. Sovereignty does not mean unlim-
ited, absolute power, nor does it mean personal authority; but
sovereignty, when properly applied to the people of the United
States as a political entity, may properly, in a guarded sense,
mean personal superiority; that is, that there is a public person
from which all power emanates, than whose will there can be
no other superior authority.”
The people are sovereign in the limited sense that there
is no external power which can be recognized as having au-
thority over them, and likewise there can be no internal tri-
bunal with inherent powers, that is, powers not granted by
the people, which can have jurisdiction over them. Therefore,
there having been no judicial tribunal created by the constitu-
tion with express jurisdiction of a suit against the United States,
the doctrine naturally followed, not because of any analogy be-
tween the people and the king of Great Britain, not because
the people cannot be bound by the obligations of a law, but
1 Jameson on Const. Conv., pp. 324, 2See Chisholm v. Georgia, 2 Dall.
331–333, 335, 337, 352, 354; Pomeroy, 219. -
Const. Law, pp. 5–28; Penhallow v. 31 Bouvier's Institutes, §§ 13, 149,
Doane, 3 Dall, 54. 150, 182.
200 THE PEOPI,E OF THE STATES. [$165.
because they have not seen fit to invest any such tribunal with
such power." -
Doubtless the word has had a bad effect upon American law,
and, because of its evil associations and improper use, it had
been well had the same silence been observed by the lawyers
which was observed by the people in the constitution.”
SEC. 165. The Method by Which the People Bound Them-
selves.—We may now safely affirm that the sovereignty of the
people consisted in this: that being originally equal in rights
and without any superior, they had a right to establish any form
of government upon any terms they could agree upon. That
without violating the ancient principle that government de-
rived its just powers from the consent of the governed, no ma-
jority had the right to coerce the minority. t
Second. That it was competent for them, by the terms of the
constitution, to agree upon the manner in which all power should
be exercised, and that all jointly, or any portion of them, should
have no right to change the fundamental law in any manner
other than by the modes therein provided.”
Third. That they did so agree and did set plain limitations
upon the exercise of all power by themselves, as well as by those
to whom they delegated the exercise of the government, and did
agree upon the republican principle that the people cannot act
en masse, but must act through representatives. That they, by
their constitution, created the judicial power independent of and
co-ordinate with the legislative branch, and clothed with a
power and duty unknown “to governments where sovereignty
was recognized-– namely: to declare null and void any acts of
the people, whether exercised through their electors or by the
legislatures, or the executive, or by all combined, which con-
travene the fundamental law; and finally, they have declared
this constitution to be the Supreme law of the land, and bind-
ing upon all individuals, bodies politic, magistrates or agents.”
1 Martin v. Hunter, 1 Wheat. 304, tice Field's Address, 134 U. S. (App.)
329. See note, 136 U. S. 606; Mar- 737. w -
bury v. Madison, 1 Cranch, 137. 5 “The constitution,” says Justice
2 Bliss on Sov. 175; Smith’s Right Davis, “is a law for rulers and peo-
& Law, §§ 508–22. ple equally in war and in peace, and
3 Marbury v. Madison, 1 Cranch, 137. covers with the shield of its protec-
4 Cohen v. Virginia, 6 Wheat. 264; tion all classes of men at all times
Cooley, Const. Tim. 58, notes; Mar- and under all circumstances.” Ex
bury v. Madison, 1 Cranch, 187; Jus- parte Milligan, 4 Wall. 120.
§§ 166, 167.] THE PEOPLE of THE STATEs. 201.
SEC. 166. Government of Law Established.— We may sum-
marize the following acts of the people destructive of the then
existing notions of sovereignty as evidenced by their constitu-
tional documents: They abolished rank and established equality.
They limited power and the manner of its exercise. They
created a tribunal with power to define the limits of right and
interpret, construe, expound and apply the law, whose duty it
is to declare void acts contrary to the constitution. They
abolished personal allegiance and substituted an oath of citizen-
ship to obey and support the constitution and enforce the law.”
The Supreme object is declared to be to establish justice and
secure the blessings of liberty, to the end that this may be a
government of laws and not of men.”
The chief principle now firmly established by the constitu-
tion” is an equality in rights and in obligations, wherein is ex-
hibited that jus aequum, that equal law, in which the Romans
placed true freedom.” Very apt is the illustration taken from
the custom of the Spaniards of Arragon, who, when they elect
a king, introduce as in a play a personage whom they dignify
by the name of law—“La Justiza of Arragon.” This personage
they declare, by public decree, to be greater and more powerful
than their king.” -
SEC. 167. The Fundamental Principles of Self-Government.
But one conclusion can be drawn from the facts surrounding
the institution of this government and the experience of the
century upon the question of the nature of the power of legis-
lation, whether in the people or elsewhere, and in relation to
the nature of law and the doctrine of unlimited power. The
result is the destruction of personal sovereignty in the many or
the few, and the substitution of the obligation of consent as
the vital principle of law. Whether it consists in the plighted
faith of the nation by way of treaty, the behest or limitation
of a constitution, a statute duly enacted, or a system universally
adopted, they are all, in truth and form, of the people, by the
people, for the people,_ the actual application of the theory
of self-government. : -
1 State v. McCreedy, 2 Hill (S. C.), 1. 41 Wilson’s Works, 308. See Santa,
* Mass. Dec. of Rights; Marbury v. Clara Co. v. Railway Co., 18 Fed. Rep.
Madison, 1 Cranch, 163. 398.
3 Fourteenth Amendment. 5 See p. 203, note 2.
202 THE PEOPLE OF THE STATES. [š 167.
The crowning achievement of our ancestors was the subordi-
nation of all powers to the supremacy of the law.
The conception of an independent tribunal, with the untried
and far-reaching power of nullifying acts of other departments
of government, is the best proof of the scope of their wisdom
and the strength and boldness of their purpose. The events of
intervening history have proven that this is a desideratum in
any scheme of self-government, essential alike to the preserva-
tion of the liberty of the individual, the power of the states,
and the perpetuity of the Union.
A learned advocate of codification has spoken of the Ro-
mans as “that magnificent people which once ruled the world
by the sword, and have since held a half dominion by the silent
empire of law; ”' and even so, an American may point with
pride to the triumphs of American genius in all the arts of
peace and war; but I doubt not the grandest and most endur-
ing achievement of this people is that which has crowned the
first century of its existence, and is expressed in the post-bellum,
amendments to the national constitution, wherein is indeed
accomplished the purpose intended by the framers of the origi-
nal document — the establishment of equality and justice, the
equality of all before the law, justice to all according to the
forms of law — the essential principles of liberty.
This liberty is not the license of anarchy, but the wholesome
liberty of citizenship. Neither is it the whim of the multitude.
“It will be well,” says Chief Justice Day, “if the people come
to understand the difference between natural and constitutional
freedom, before license becomes destructive of liberty.”
The municipal law of the United States” is not the will of the
people as passion or clamor may incline them, not the will of
the mob or commune, but their deliberate and rightful judg-
ment, expressed in conformity to the constitution, to which
1 D. D. Field's Address to Am. Bar
Ass'n, 1889, p. 233.
2 Koehler v. Hill, 60 Iowa, 616.
3 The student of American law
must not confound the civil law or
municipal law, as we term it, with
law generally. The civil law of a
particular people is a different thing
from a rule of conduct imposed upon
an inferior or conquered people or by
an external power. We will have
occasion to notice and apply this
distinction in the next chapter,
wherein we shall treat the govern-
ment of our territories and colonial
possessions acquired by purchase,
conquest, discovery or otherwise.
§ 167.] THE PEOPLE OF THE STATES. 203
every man yields obedience, nor knows any other allegiance.
The protection of the constitution attends every one every-
where, whatever be his position in society, his social or official
position, his financial situation or his religious belief. Justice
Pield says truly: “The constitution is the shield which the arm
of Our blessed government holds at all times over every One,
man, woman and child, in all its broad domain, wherever they
may go and in whatever relations they may be placed.”"
Truly sayeth one: “The old-time omnipotence of the English
sovereign, succeeded in our day by the omnipotence of the Eng-
lish parliament, has no place in Our political system, no analogue
in our political vocabulary.”
1 County of Santa Clara v. South-
ern R. Co., 18 Fed. Rep. 398.
* Const. Hist. in Am. Law, p. 286.
The admiration of the patriot for the
achievements of our statesmen should
not be allowed to blind him to the
true method of legal study, viz.: To
present to view every pre-existing
historical fact which may have had
an influence upon the minds and
acts of the framers of the constitu-
tion.
The example of an early experi-
ment of creating a judicial tribunal
with the power to require every
magistrate to conform to the consti-
tution was known to prominent
members Of the convention of 1787.
The remarkable features of gov-
ernment which had obtained in por-
tions of Spain received elaborate
treatment at the hands of Dr. Robert-
SOIOl.
This famous Scotch historian, in
his history of Charles the Fifth,
which appeared in 1769, examined
very minutely the principles of the
feudal system which obtained upon
the continent of Europe.
His masterly treatment of the sub-
ject attained great prominence and
attracted universal attention among
scholars Of the world. In 1777 his
history of America was completed
and published, which his biographer
says may be considered a sequel to
his Reign of Charles the Fifth. James
Wilson, one of the most prominent
of the Revolutionary statesmen, and
one of the greatest scholars of the
period, makes a great many refer-
ences in his published works to the
opinions and statements of Dr. Rob-
ertSon.
In his opinion in the decision of
the case of Chisholm. v. Georgia, he
makes special reference to the mat-
ter to which attention is called in
this note.
What, if any, influence this ex-
ample may have had is left for the
reader to judge; but the early ex-
periment, and the fact that the at-
tention of American statesmen was
directed to it, should not be passed
by unnoticed. -
Dr. Robertson says: “The feudal
form of government, with all the in-
stitutions which characterize it, was
thus (in Spain) preserved entire in
Castile and Aragon, as well as in all
the kingdoms which depended on
these crowns. There were certain
peculiarities in their political con-
stitutions which distinguished them
from those of any other country in
Europe.
“The royal prerogative, extremely
limited in every feudal kingdom, was
circumscribed, in Spain, within such
204.
[š 167.
THE PEOPLE OF THE STATES.
narrow bounds, as reduced the power
of the Sovereign almost to nothing.
“The privileges of the mobility were
great in proportion, and extended so
far as to border on absolute inde-
pendence.
“The immunities of the cities were
likewise greater than in other feudal
Ringdoms. They possessed consider-
able influence in the cortes, and they
aspired at obtaining more. (143–44.)
“The form of government in Ara-
gon was monarchial, but the genius
and maxims of it were purely repub-
lican. The kings, who were long
elective, retained only the shadow of
power; the real exercise of it was in
the cortes or parliament of the king-
dom. This supreme assembly was
composed of four different arms or
members: The nobility of the first
rank; the equestrian order, or no-
\bility of the second class; the rep-
resentatives of the cities and towns,
whose right to place in the cortes, if
we may give credit to the histor-
ians of Aragon, was coeval with the
constitution; the ecclesiastical order,
composed of the dignitaries of the
church, together with the represent-
atives of the inferior clergy. No law
could pass in this assembly without
the assent of every single member
who had a right to vote. (145–46.)
The Supreme Court or Justiza.-
“Not satisfied with having erected
such formidable barriers against the
encroachments of the royal preroga-
tive, nor willing to commit the sole
guardianship of their liberties en-
tirely to the vigilance and authority
of an assembly, similar to the diets,
states-general and parliaments, in
which the other feudal nations have
placed so much confidence, the Ara-
gonese had recourse to an institution
peculiar to themselves, and elected a
..justiza, or Supreme judge. This mag-
istrate, whose Office bore some re-
semblance to that of the ephori in
ancient Sparta, acted as the pro-
tector of the people and the comp-
troller of the prince. The person of
the justiza was sacred, his power and
jurisdiction almost unbounded. He
was the supreme interpreter of the
laws. Not only inferior judges, but
the kings themselves, were bound to
consult him in every doubtful case,
and to receive his responses with im-
plicit deference. An appeal lay to
him from the royal judges, as well as
from those appointed by the barons,
within their respective territories.
(146–47) . . .
The Nature of Allegiance.—“It is
evident, from a bare enumeration
of the privileges of the Aragonese
cortes as well as of the rights belong-
ing to the justiza, that a very small
portion of power remained in the
hands of the king. The Aragonese
seem to have been solicitous that
their monarchs should know and feel
this state of impotence to which they
were reduced. Even in swearing al-
legiance to their sovereign, an act.
which ought naturally to be accom-
panied with professions of submis-
sion and respect, they devised an oath
in such a form as to remind him of
his dependence on his subjects. “We,”
said the justiza to the king, in name
of his high-spirited barons, “who are
each of us as good and who are al-
together more powerful than you,
promise obedience to your govern-
ment, if you maintain our rights and
liberties; but if not, not.’ Conform-
ably to this oath, they established it
as a fundamental article in their con-
stitution that, if the king should vio-
late their rights and privileges, it
was lawful for the people to disclaim
him as their sovereign, and to elect
another, even though a heathen, in
his place.” (147–48) See 5 Wheat.
(App.) p. 31, note 2; Chisholm. v.
Georgia, 2 Dall. (Justice Wilson's
opinion), p. 460.
CHAPTER IX.
THE PUBLIC DOMAIN.
The condition of the people of a territory is to be governed by others;
of a state, to govern themselves.—Benton's Ex. Dred Scott Decision, 90.
SEC. 168. Growth of Colonial Union.—The problem of achiev-
ing independence, and establishing a republican form of govern-
ment, was successfully worked out in the two decades which
fall within the Revolutionary period. The very act of establish-
ing a national union with a government co-extensive with the
boundaries of all the states brought with it problems not capable
of immediate solution in accordance with the same principles
acted upon in building the nation.
The nature of the union existing between the people after
the Declaration of Independence and prior to the adoption of
the present constitution is not necessarily within the range of
Our discussion.
There was, however, important action taken during this
period and which had an intimate relation to the action taken
Subsequently and upon important questions which subsequently
arose in reference to our public domain. It will perhaps aid us
in understanding these questions to make a few observations
upon the state of the union prior to and during the Revolution-
ary period. -
SEC. 169. Epochs of the JEvolution of the National Union.—
The time contemplated may be divided into four periods:
J7%rst. A period antedating what may be termed the Revolu-
tionary period, or the union of all the colonies.
Second. From 1765 to 1776 the struggle was to maintain their
constitutional rights as British freemen, not to separate from
the British crown.
Third. From 1776 to 1783 the struggle was for independence
and a closer unity.
Fourth. From 1781 to 1789 was the period of evolution of the
national constitution.
Opinions will naturally differ as to the nature of many of the
206 THE P'UIBLIC DOMAIN. [š 170.
acts taken, as to whether they were taken as one people, united
under the bonds of society, or whether the nation was taken as
thirteen independent colony states. It is safe, however, to as:
sert that during no period of the time had any of the states
individually assumed and exercised the attributes of indcpend-
ent states, or assumed the station of an independent nation.
SEC. 170. Anti-Revolutionary Conventions."—This same pe-
riod of time presents various phases of political unity.
Long before any thought of forcible resistance entered the
minds of the colonists, and while they were in apparent har-
mony with the mother country, the colonists united themselves.
by an additional bond other than that implied by the relation
of common subjects of one sovereign. It will be useful in this.
connection to observe what has been heretofore alluded to, that
the selection of a common personal sovereign was not considered
upon feudal principles to be a surrender of national integrity.
The same may be said of a league or alliance for mutual pro-
tection by way of offensive or defensive action.
As early as May in the year 1637, steps were taken towards.
an alliance between Plymouth and Massachusetts colonies. In
August of the same year, another movement was said to have
taken place between Connecticut and New Haven. These
failed of success, as did others subsequently taken.
In the year 1642, however, a common danger from the
French, the Dutch and the Indians had the effect of bringing
about the first actual confederation of the united colonies of
New England. The same question which defeated former
attempts was the chief obstacle in the way of accomplishing
the union, namely: the relative voting power of each one in
the general assembly; the larger colony of Massachusetts not
being satisfied with an equal vote, and the smaller colonies in-
sisting upon an equal voice.
This matter was, however, finally adjusted, and the assembly
adopted an organic law, of which the following is the sub-
stance:
JFºrst. “The colonies of Massachusetts, Plymouth, Connecti-
cut and New Haven do agree and conclude that they will
hereafter be called and known as the United Colonies of New
England.” i
1 This word is here used as agreement.
§ 170.] THE PUBLIC DOMAIN. 20'ſ
Second. “The said United Colonies, for themselves and their
posterities, do jointly and severally thereby enter into a firm.
and perpetual league of friendship and amity for offense and
defense, mutual advice and succor upon all just occasions for
their mutual safety and general welfare.”
Third. “Each colony retains its distinct and separate juris-
diction and control over its domestic and local affairs, institutions
and laws. No colonies are to be joined in one jurisdiction, nor
any other colony admitted into the confederacy, without the
consent of the whole.”
Fourth. “The expense of wars and other general expenses
shall be borne in proportion to the number of male inhabitants
between sixteen and sixty years of age in each colony.”
Fifth. “Upon notice from any colony of an invasion, the
other colonies shall immediately furnish aid.”
Słaith. “The general assembly is composed of two commis-
sioners from each colony, to meet annually on the first Monday
of September.” This assembly had jurisdiction to determine
all affairs of war and peace, and other matters pertaining to
the general welfare, “but not to intermeddle with the local
affairs of the colonies.” A two-thirds vote was sufficient to
carry into effect any proposed measure; if less concurred, the
majority could submit the measure to the respective govern-
ments for decision. º
Seventh. Provides for the annual election of the president.
Eighth. “The assembled commissioners are authorized to
enact general regulations of a civil nature for preserving the
peace and to regulate intercourse with Indian tribes.”
Ninth. Provides for the return of runaway servants, etc.
Tenth. Provides against hasty or inconsiderate wars by any
colony. -
Eleventh. Provides for calling special meetings of the gen-
eral assembly.
Twelfth. “That the confederacy shall be perpetual. If any
of the confederates shall break the articles of confederacy, the
matter shall be duly considered and adjudged by the commis-
sioners of the other colonies, ‘so that the peace and the con-
federation shall be entirely preserved without violation.’”
If this document is examined in connection with the prin-
ciples of feudal polity, it may be affirmed that the fact of the
208 THE PUBLIC DOMAIN. [šš 171, 172.
existence of a common sovereign, while it does not prevent
complete national independence, does not permit the union of
any two nations or independent societies. If the document is
examined in view of the effect of its own provisions upon the
character and capacity of the new person or society created by
it, or the relation of its parts, it is apparent that it effected a
very great change in the relation which before that time ex-
isted between the colonies. The exercise of great national
affairs is confided to the general assembly, and to a colony is
allowed jurisdiction only over local affairs, and the authority
over national affairs is expressly taken away.
When, in addition to this, jurisdiction is given to the general
assembly to determine whether any colony was guilty of a
breach of the articles, it is plain that the colonies which became
parties to this contract divested themselves of some of the su-
preme attributes of independence, and became, in some measure,
united under one constitution and one system of government.
We shall not overlook, however, that this early constitution
embraced only a small portion of what was afterwards the thir-
teen united colonies.
SEC. 171. Eactension of the Union.— In 1754 Virginia and
all of the northern colonies assembled at Albany, in New York,
and considered a proposition submitted by Dr. Franklin to form
a closer union. It was not, however, until 1765 that a conven-
tion was projected which should create an American congress,
and have for its object the knitting together of every region as
fast as settled. It was certain that the intention of all con-
cerned was to form an American union. Opinions have always
differed and views will always be divergent as to whether, in
fact and in truth, there was before the constitution of 1787 a.
real national union of the states," of such a character as to sur-
render their sovereignty and independence.
The character of the town meetings, continental congresses
and general courts, through which the people expressed their
voice prior to the congress of September 7, 1774, speak no cer-
tain and unambiguous voice on this matter.
SEC. 172. Nature of the Union. During the Revolution.—
|Upon the relation of the states and the character of the union
1 Opinions differed on this point even after that time.
§ 172.] THE PUBLIC DOMAIN. - 209
from this time forth, we have judicial utterances which suffi-
ciently express the sentiment which finally prevailed. Mr.
Justice Chase, in Ware v. Hylton, says: “It has been inquired
what powers congress possessed from the first meeting in Sep-
tember, 1774, until the ratification of the articles of confedera-
tion on the 1st of March, 1781? It appears to me that the
powers of congress, during the whole period, were derived from
the people they represented, expressly given, through the me-
dium of their state convention or state legislatures; or that
after they were exercised they were impliedly ratified by the
acquiescence and obedience of the people. After the confeder-
acy was completed, the powers of congress rested on the au-
thority of the state legislatures and the implied ratification of the
people, and was a government over governments. The powers of
congress Originated from necessity, and arose Out of, and were
only limited by, events; or, in other words, they were revolu-
tionary in their very nature. Their extent depended on their
exigencies and necessities of public affairs. It was absolutely
and indispensably necessary that congress should possess the
power of conducting the war against Great Britain, and there-
fore, if not expressly given by all (as it was by some of the
states), I do not hesitate to say that congress did rightfully
possess such power. The authority to make war, of necessity
implies the power to make peace, or the war must be perpetual.
I entertain this general idea, that the several states retained all
&nternal sovereignty, and that congress properly possessed the
great rights of easternal sovereignty.
“The articles of confederation adopted in 1781 contained a
clause upon which has been based the contention of the inde-
pendent sovereignty of the states. It is therein expressly stated
that each state retains its sovereignty, freedom and independ-
£IſlCé.
“The Declaration of Independence has an important bearing
upon the construction to be placed upon the articles of confed-
eration. Was it in character the act of a united people, or the
act of independent states? The address is: “We, therefore,
the representatives of the United States of America, in general
congress assembled.”””
13 Dall. 232. See Texas v. White, *See Pomeroy's Const., sec. 52;
ºf Wall, 724–25. Jameson, Const. Conv., sec. 27.
14 -
210. THE PUBLIC DOMAIN. [$$ 173, 174.
SEC. 173. Early Disposition of Unoccupied Territory.—The
action of the states prior to the constitution in reference to their
territorial holdings in itself constitutes a strong indication of
the manner in which they each regarded the union. i
Before the adoption of the articles of confederation, and as
indicating their intention in ratifying them or adopting them,
several of the states expressly declared that it was unreasonable
that the states should hold unlimited territory, but that their
boundaries should be fixed, and the land claimed beyond this
boundary should become the property of the United States.
In 1779 congress recommended to the state of Virginia to re-
consider her late act of opening a land office and selling her
unappropriated land. In 1780 New York enacted that the
United States in congress assembled should have jurisdiction
to fix her western boundaries, and the act proceeds: “Be it
further enacted by the authority aforesaid, that the territory
which may be ceded or relinquished, by virtue of this act, either
with respect to jurisdiction, as well as the right or pre-emption
of soil, or the right or pre-emption of soil only, shall be and
inure to the use and benefit of such of the United States as shall
become members of the federal alliance of the said states, and
for no other purpose whatever.”
In 1783 Virginia passed an act to authorize the delegates of
her states to convey to the United States in congress assembled
all the rights of this commonwealth to the territory northwest
of the river Ohio, and such a deed of cession was formally exe-
cuted March 1, 1784, sometime after the treaty of peace between
England and the United States.
Upon the ratification of the treaty between England and the
United States in 1783, there existed a vast territory claimed as
belonging to certain of the states, but which was situated be-
yond the established boundaries of these states. The owner-
ship and position of such territory was a matter of general
public concern and of some local jealousy and distrust between
the states. -
SEC. 174. Territory Ceded by the States.—Pursuant to ami-
cable adjustments, all such territory was very early ceded to
the United States by the states owning or claiming to own such
territory. In this manner the first territory outside of the
limits of the Original states was acquired, and the necessary
§ 175.] THE PUIS LIC DOMAIN. 211
consequence of acquiring territory was the devising of some
means of governing and disposing of it.
This was provided for in the old articles of confederation
and in the new constitution of 1787.
Article 4, section 3, embraced this subject. This section is
as follows:
“$ 3. First. New states may be admitted by the congress of
this Union; but no new state shall be formed or erected within
the jurisdiction of any other state, nor any state be formed by
the junction of two or more states, or parts of states, without
the consent of the legislatures of the states concerned, as well
as of the congress. - -
“Second. The congress shall have power to dispose of, and
make all needful rules and regulations respecting, the territory
or other property belonging to the United States; and nothing
in this constitution shall be so construed as to prejudice any
claims of the United States, or of any particular state.”
SEC. 175. The Ordinance of 1787–The people of the states,
ceding to the general government other unoccupied territory,
made provision for the establishment of a republican form of
government therein. This was accomplished by the celebrated
Ordinances of 1787.
These ordinances were but a revision and re-adoption of a
similar ordinance which had been in force before the present
constitution. The ordinances applied to all of the northwest
territories; that is, the territory lying north of the Ohio, and
extending to the western boundary of the territorial holdings
Of the Union." #
It provided for the preservation of the civil rights of the in-
habitants and for the formation of states out of the territory,
so soon as the inhabitants had become sufficient in number to
be entitled to the position of a state. -
The principal feature to be observed at the present time is
that this ordinance plainly indicated that the United States
was not to treat the inhabitants of this territory as permanent
colonies, but they were to be maintained in the condition of ter-
ritories only during such period of development as was deemed
1 This ordinance will be found published with the constitution in the
statutes of many of the states.
212
[š 175.
THE PUBLIC DOMAIN.
essential to bring them to the dignity and numerical strength
necessary for the duties of statehood.
The constitution of the United States did not of its own force
and vigor extend to the inhabitants of the territories. The guar-
anty of their rights and liberties was found only in the ordi-
nance, and they were not parties to or in any manner entitled
to the privileges of the constitution of the United States."
1 Mr. Webster said: “It is of im-
portance that we should seek to have
clear ideas and correct notions of the
questions which this amendment of
the member from Wisconsin has pre-
sented to us; and especially that we
should seek to get some conception
of what is meant by the proposition,
in a law, to ‘extend the constitution
of the United States to the territo-
ries.’ Why, sir, the thing is utterly
impossible. All the legislation in
the world, in this general form, could
not accomplish it. There is no cause
for the operation of the legislative
power in such a manner as that.
The constitution — what is it? We
extend the constitution of the United
States by law to territory. What is
the constitution of the United States?
Is not its very first principle, that
all within its influence and compre-
hension shall be represented in the
legislature which it established, with
not only a right to debate and a
right to vote in both houses of con-
gress, but a right to partake in the
choice of the president and vice-
president? And can we by law ex-
tend these rights, or any of them, to
a territory of the United States?
Everybody will see that it is alto-
gether impracticable. It comes to
this, then, that the constitution is to
be extended as far as practicable;
but how far that is, is to be decided
by the president of the United States,
and therefore he is to have absolute
and despotic power.
“He is the judge of what is suit-
able and what is unsuitable; and
what he thinks suitable is suitable,
and what he thinks unsuitable is un-
suitable. He is “Omºnis in hoc; ” and
what is this but to say, in general
terms, that the president of the
|United States shall govern this ter-
ritory as he sees fit till congress
makes further provision. Now, if
the gentleman will be kind enough
to tell me what principle of the con-
stitution he supposes suitable, what
discrimination he can draw between
suitable and unsuitable, which he
proposes to follow, I shall be in-
structed. Let me say that in this
general sense there is no such thing
as extending the constitution. The
constitution is extended Over the
United States and over nothing else.
It cannot be extended over anything
except over the old states, and the
new states that shall come in here-
after, when they do come in. There
is a want of accuracy of ideas in this
respect that is quite remarkable
among eminent gentlemen, and es-
pecially professional and judicial
gentlemen. It seems to be taken for
granted that the right of trial by
jury, the habeas corpus, and every
principle designed to protect per-
sonal liberty, is extended by force of
the constitution itself over every new
territory. That proposition cannot
be maintained at all. How do you
arrive at it by any reasoning or de-
duction? It can be only arrived at
by the loosest of all possible con-
structions. It is said that this must
be so, else the right of the habeas
corpus would be lost. Undoubtedly
§ 175.] THE PUBLIC DOMAIN. 213
Importance of the Question.—This matter will be more fully
examined as we proceed to discuss the acquisition of territories.
from sources other than a mutual convention and consent of
the original parties to the United States constitution, simply
remarking here that the question of the relation of the na-
tional constitution to the inhabitants of territories was One of
the great national questions which divided the people of the
United States and lay at the basis of the struggle over the
Missouri compromise—the right to carry slavery into newly-
acquired territory.
SEC. 175. Relation of the Ordinance to the Constitution.—
The ordinance and the constitution were parts of the same
system, constructed simultaneously for One general purpose —
that of forming a more perfect union between the states and
Creating a great national system. The Ordinance was a nat-
ural and proper means of preserving the rights of inhabitants
of states who, by a new adjustment of boundaries, were thrown
without the limits of the state of which they were citizens. It
provided for a republican form of government for the territo-
ries. It was necessary to settle the political condition of the
territories and guaranty the rights of the inhabitants. The or-
dinance was their constitution. It framed their governments.
The national constitution had nothing to do with the territo-
ries."
It has been contended that the clauses of the constitution
above referred to did not confer upon congress the right of
government over the territories, because that had been provided
for by the ordinance; but the ordinance was merely a compact
restraining and directing the government, while the other con-
stitutional regulations, emanating from the same source, dele-
gated the governing power to congress.” The whole people
might have placed the governing power elsewhere.
The ordinance was made for the territory of the United States.
then in possession of the United States or a state. It was not
made under the constitution. It was made before it, but in
these rights must be conferred by constitutes the great fundamental
law before they can be enjoyed in a question. The right of a negro to
territory.” Benton's Ex., pp. 132–33. become a citizen is a subordinate
1 This is denied in the prevailing one. ©
Opinion of the Dred Scott case and 2 See post, sec. 187.
214 THE PUBLIC DOMAIN. [š 176.
connection with it. It was made by right of ownership both
of soil and jurisdiction, and by virtue of the compacts with the
ceding states.
SEC. 176. On the Admission of a State the Ordinance Became
No Longer in Force as to it.—It was a question of doubt in
many jurisdictions, and for a long time, whether the ordinance
was to have perpetual force and continue forever a charter of
the rights and liberties of the inhabitants of the Northwest ter-
ritories." -
The question has long since been put to rest. The true con-
clusion is stated by the supreme court of Illinois in the follow-
ing luminous manner: “The supreme court of the United
States has in numerous cases decided that the ordinance of
1787 has become inoperative. In Sands v. Manistee ſºver Im-
provement Co., 123 U. S. 288, that court said: ‘The ordinance
of 1787 was framed a year and some months before the consti-
tution of the United States went into operation. Its framers,
and the congress of the confederation which passed it, evi-
1 “In Illinois River Packet Co. v.
IPeoria Bridge Co., 38 Ill. 478, Mr. Jus-
tice Breese said that ‘it was unneces-
sary to decide the question whether
this ordinance is in force or not,’ but
it was held that, even if admitted to
be in force, it was not, in the matter
there complained of, violated. In
Phoebe v. Jay, 1 Breese, 268, decided
in 1828, it was said that the Ordi-
nance was “no doubt still binding
consent,” but it was held that the ad-
mission of the state into the Union,
by act of congress, abrogated, or gave
consent to the abrogation of, so much
of the ordinance as was in conflict
with the state constitution.” People
v. Thompson, 155 Ill. 473. See also
People v. United States, 93 Ill. 30.
Mr. Walker, in his American Law,
ventures no opinion on this subject.
There are, however, several cases
cited discussing the question, p. 42,
In Ote. -
In the case of Hogg v. Zanesville,
5 Ohio, 410, the court says: “This por-
tion of the Ordinance (the 4th arti-
cle) of 1787 is as much obligatory
towards the state of Ohio as our own
constitution. In truth it is more so,
for the constitution may be altered
by the people of the state, while this
cannot be altered without the assent
both of the people of this state and
of the United States through their
representatives. It is an article of
compact, and until we assume the
principle that the sovereign power
of the state is not bound by compact,
this clause must be considered obli-
gatory.”
In the case of La Plaisance v. Mon-
roe, 1 Walker Ch. Rep. (Mich.) 155,
the court says: “The ordinance of
1787, in my opinion, is no part of the
fundamental law of the state since
its admission into the Union. It was
then superseded by the state consti-
tution, and such parts of it as are
not to be found in the federal or
state Constitutions were then an-
nulled by mutual consent.” Walker,
Am. Law, note, pp. 42, 43.
$176.] THE PUBLIC DOMAIN. 215
dently considered that the principles and declaration of rights
and privileges expressed in its articles would always be of bind-
ing obligation upon the people of the territory. The ordi-
nance, in terms, ordains and declares that its articles “shall be
considered as articles of compact between the original states
and the people and states in said territory, and forever remain
unalterable unless by common consent.” And for many years
after the adoption of the constitution its provisions were treated
by various acts of congress as in force, except as modified by
such acts. In some of the acts Organizing portions of the ter-
ritory under separate territorial governments it is declared
that the rights and privileges granted by the ordinance are
secured to the inhabitants of those territories; yet, from the
very condition on which the states formed out of that territory
were admitted to the Union, the provisions of the ordinance
became inoperative, except as adopted by them. All the states
thus formed were, in the language of the resolutions or acts of
congress, admitted into the Union on an equal footing with
the original states, in all respects whatsoever.” And in Esca-
naba, etc. Co. v. City of Chicago, 107 U. S. 678, where it was
insisted that the ordinance was in force in Illinois, and pre-
vailed over certain municipal regulations under which bridges .
were maintained across the Chicago river, which, it was claimed,
interfered with the free navigation of that river, forever guar-
antied by said ordinance, the supreme court said that, al-
though the enabling act of 1818, and other acts of congress
mentioned, ‘refer to the principles of the ordinance accord-
ing to which the constitution was to be formed, its provisions
could not control the authority and power of the state after
her admission. Whatever the limitation upon her powers as
a government was whilst in a territorial condition, whether
from the Ordinance of 1787 or the legislation of congress,
it ceased to have any operative force, except as voluntarily
adopted, after she became a state of the Union. On her ad-
mission she at once became entitled to and possessed of all the
rights of dominion and sovereignty which belonged to the
original states.’” -
1 People v. Thompson, 155 Ill. 451, (3 How.) 588; Pollard v. Hagan, 3
472. See also Permoli v. First Mu- How. 212; Van Brocklin v. Tennes-
inicipality of New Orleans, 44 U. S. see, 117 U. S. 151; Huse v. Gardner,
216 TEIE PUBLIC DOMAIN.
[S 177.
SEC. 177. The Acquisition of Foreign Territory.— The right
of the United States to acquire title to foreign territory by
any of the modes recognized by the law of nations was one
not free from difficulty, and not expressly provided for by the
provisions of the national constitution.
The articles of confederation contained a clause which in-
volved in doubt the general powers of the national government.
They provided that each state retain its sovereignty, freedom
and independence, and every power, jurisdiction and right
which is not by the states expressly delegated to the United
States in congress assembled."
The same subject is alluded to in the ninth and tenth amend-
ments to the new constitution.”
JDiverse Views Stated.— The national government being, ac-
cording to the usual form of expression, One of enumerated pow-
ers, it became a question upon which great minds differed as
to whether there was any power or authority in the government
of the United States to expand the boundaries of the national
domain.
President Jefferson, under whose administration the first
foreign territory was acquired,” was of the opinion that it was
necessary that congress should submit to the nation at large
an additional amendment to the constitution approving, con-
firming and ratifying the act of acquiring the territory of
Louisiana, which he felt impelled by inexorable necessity to
acquire. He said: “The constitution has made no provision
for our holding foreign territory, still less for incorporating
foreign nations into our union.”*
On the other hand there were those who hold that the United
States as a nation have an inherent right to acquire territory.”
No constitutional amendment was ever submitted or adopted
enlarging the powers of the United States in this respect, and
119 id. 544; State v. Cunningham, 81 X. “The powers not delegated to the
Wis. 440, op. by Pinney, J.; Strader
v. Graham, 10 How. 82.
1 See 1 Wilson’s Works, 556.
2 IX. “The enumeration, in the
constitution, of certain rights shall
not be construed to deny or dispar-
age others retained by the people.”
TJnited States by the constitution,
nor prohibited by it to the states, are
reserved to the states respectively, or
to the people.” U. S. Const.
3 Louisiana.
4 Jefferson’s Works, 499.
5 Miller’s Lect. On Const. 129.
§§ 179, 180.] THE PUBLIC DOMAIN. - 21'ſ
the action subsequently taken and now about to be taken is.
to be settled on general principles of national law.
SEC. 179. The Inherent Power of a Nation to Acquire Ter-
ritory.— Most, if not all, of the great struggles between polit-
ical parties in the United States have involved the question of
the inherent power of the nation.
On either side of this question have been arrayed the con-
tending parties, the One professing a strict construction, holding
that the enumeration of powers excludes the implication of
other powers, and the reservation of the states to themselves
Of all powers not delegated makes more clear the policy of
enumeration. -
On the other hand, it has been urged that the position and
situation of the nation as a great political person necessarily
and impliedly allows to that nation the exercise of all sovereign
powers which it would be beyond the power and jurisdiction
Of a state to exercise. *
SEC. 180. The Origin of the Question.—The suggestion that
the United States, under the old confederation, had, by virtue of
Žts position as a nation, certain implied powers, was advanced
in connection with another proposition, namely: the exercise of
the power to charter corporations.” In the same connection,
however, and as illustrating it, the power to make war and
peace and acquire territory was mentioned. All arguments.
which have followed upon the power to acquire territory, the
power to incorporate United States or national banks, and
indeed the power which sanctioned the legal tender acts, de-
pend on this same principle.
The Earliest Statement of the Inherent Power to Acquire Terri-
tory.— James Wilson, afterwards Mr. Justice Wilson, discussed
this question in his famous argument upon the power of the
United States to incorporate the Bank of North America. His
language, which we here present, should be read and consid-
ered along with all of the questions above suggested, but at
this point our attention should be directed particularly to the
capacity to acquire territory outside of the boundaries of the
United States. He says, upon the power to incorporate a bank:
“If, then, any or each of the states possessed, previous to the
1 1898. 2 The same proposition involved in.
* McCullough v. Maryland.
218 g TELE PUBLIC DOMAIN. [S 180.
confederation, a power, jurisdiction or right to institute and
organize by a charter of incorporation a bank for North Amer- -
ica — in other words, commensurate to the United States,
such power, jurisdiction and light, unless expressly delegated
to congress, cannot be legally or constitutionally exercised by
that body. $ -
“But, we presume, it will not be contended that any or each
of the states could exercise any power or act of sovereignty.
extending over all the other states or any of them; or, in other
words, incorporate a bank, commensurate to the United States.
“The consequence is, that this is not an act of sovereignty,
or a power, jurisdiction or right which, by the second article
of the confederation, must be expressly delegated to congress in
order to be possessed by that body.
“If, however, any person shall contend that any or each of
the states can exercise such an extensive power or act of SOV-
ereignty as that above mentioned, to such person we give this
answer: The state of Massachusetts has exercised such power
and act; it has incorporated the Bank of North America. But
to pursue my argument.
“Though the United States in congress assembled derive
from the particular states no power, jurisdiction or right which
is not expressly delegated by the confederation, it does not
thence follow that the United States in congress have no other
powers, jurisdiction or rights than those delegated by the par-
ticular states. - -
“The United States have general rights, general powers
and general obligations, not derived from any particular states,
nor from all the particular states taken separately, but result-
ing from the union of the whole; and therefore it is provided
in the fifth article of the confederation, “that, for the more
convenient management of the general interests of the United
States, “delegates shall be annually appointed to meet in con-
gress.” r
“To many purposes the United States' are to be considered
as one undivided, independent nation, and as possessed of all
the rights, and powers, and properties, by the law of nations
incident to such. - -
1 The old confederacy is here referred to.
§ 181.] THE Public Domain. 219
The Principle Upon Which Inherent Powers of the General
Government Depend.—“Whenever an object occurs, to the
direction of which no particular state is competent, the man-
agement of it must, of necessity, belong to the United States
in congress assembled. There are many objects of this ex-
tended nature. The purchase, the sale, the defense, and the
government of lands and countries, not within any state, are
all included under this description. An institution for circu-
lating paper, and establishing its credit over the whole United
States, is naturally ranged in the same class. -
“The act of independence was made before the articles of
confederation. This act declares that ‘ these United Colonies’
(not enumerating them separately) “are free and independent
states; and that, as free and independent states, they have full
power to do all acts and things which independent states may,
of right, do.”
“The confederation was not intended to weaken or abridge
the powers and rights to which the United States were previ-
Ously entitled. It was not intended to transfer any of those
powers or rights to the particular states, or any of them. If,
therefore, the power now in question was vested in the United
States before the confederation, it continues wested in them still.
The confederation clothed the United States with many, though
perhaps not with sufficient powers; but of none did it disrobe
them.
“It is no new position that rights may be vested in a polit-
ical body which did not previously reside in any or in all the
members of that body. They may be derived solely from the
union of those members. ‘The case,” says the celebrated Bur-
lamaqui, ‘is here very near the same as in that of several voices
collected together, which, by their union, produce a harmony
that was not to be found separately in each.” • 1
SEC. 181. Derivation of Power to Acquire and Govern Ter-
ritories.—Chief Justice Marshall presents the view which pre-
Vailed prior to the decision of the Dred Scott case in reference
to the power to acquire external territory and the principles
which obtained in reference to the government of them, as fol-
lows: -
“The constitution confers absolutely on the government of
11 Wilson's Works, pp. 557-560, notes.
220 TEIE PUBLIC DOMAIN. [š 181.
the Union the powers of making war and of making treaties;
consequently, that government possesses the power of acquiring
territory either by conquest or by treaty.
“The usage of the world is, if a nation be not entirely sub-
dued, to consider the holding of conquered territory as a mere
military occupation, until its fate shall be determined at the
treaty of peace. If it be ceded by the treaty, the acquisition is
confirmed, and the ceded territory becomes a part of the nation
to which it is annexed, either on the terms stipulated in the
treaty of cession, or on such as its new master shall impose. On
such transfer of territory, it has never been held that the rela-
tions of the inhabitants with each other undergo any change.
Their relations with the former sovereign are dissolved, and
new relations are created between them and the government
which has acquired their territory. The same act which trans-
fers their country, transfers the allegiance of those who remain
in it; and the law, which may be denominated political, is nec-
essarily changed, although that which regulates the intercourse,
and the general conduct of individuals, remains in force, until
altered by the newly-created power of the state.”
On the 2d of February, 1819, Spain ceded Florida to the
United States. The sixth article of the treaty of cession con-
tains the following provision: “The inhabitants of the terri-
tories which his Catholic majesty cedes to the United States
by this treaty shall be incorporated in the Union of the United
States as soon as may be consistent with the principles of the
federal constitution, and admitted to the enjoyment of the priv-
ileges, rights and immunities of the citizens of the United
States.”
Jiffect of the Treaty.—This treaty is the law of the land, and
admits the inhabitants of Florida to the enjoyment of the priv-
ileges, rights and immunities of the citizens of the United
States. It is unnecessary to inquire whether this is not their
condition independent of stipulation. They do not, however,
participate in political power; they do not share in the govern-
ment till Florida shall become a state. In the meantime Flor-
ida continues to be a territory of the United States, governed
by virtue of that clause in the constitution which empowers
congress “to make all needful rules and regulations respecting
the territory or other property belonging to the United States.”
§ 181.] THE Public Doxas. 221
Perhaps the power of governing a territory belonging to the
United States, which has not, by becoming a state, acquired
the means of self-government, may result necessarily from the
fact that it is not within the jurisdiction of any particular
state and is within the power and jurisdiction of the United
States. The right to govern may be the inevitable consequence.
of the right to acquire territory. Whichever may be the source
whence the power is derived, the possession of it is unques-
tioned. In execution of it, congress in 1822 passed “An act
for the establishment of a territorial government in Florida,”
and on the 3d of March, 1823, passed another act to amend
the act of 1822. Under this act the territorial legislature en-
acted the law now under consideration. -
The fifth section of the act of 1823 creates a territorial legis-
lature, which shall have legislative powers over all rightful
objects of legislation; but no law shall be valid which is in-
consistent with the laws and constitution of the United States.
The seventh section enacts, “That the judicial power shall
be vested in two superior courts, and in such inferior courts
and justices of the peace as the legislative council of the terri-
tory may from time to time establish.” After prescribing the
place of cession and the jurisdictional limits of each court, the
act proceeds to say: “Within its limits herein described, each
court shall have jurisdiction in all criminal cases and exclusive
jurisdiction in all capital offenses; and original jurisdiction in
all civil cases of the value of one hundred dollars, arising under
and cognizable by the laws of the territory now in force therein,
or which may at any time be enacted by the legislative council
thereof.”
The eighth section enacts, “That each of the said superior
courts shall moreover have and exercise the same jurisdiction
within its limits, in all cases arising under the laws and con-
stitution of the United States, which, by an act to establish the
judicial courts of the United States, approved the 24th of Sep-
tember, 1789, and an act in addition to the act entitled an act
to establish the judicial courts of the United States, approved
the 2d of March, 1793, was vested in the court of Kentucky dis-
trict.” §
“The powers of the territorial legislature extend to all right-
ful objects of legislation, subject to the restriction that their
222 THE PUBLIC DOMAIN. [š 182.
laws shall not be “inconsistent with the laws and constitution
Of the United States.’” "
SEC. 182. Title by Purchase.—By far the greatest area of
territory has been acquired by processes other than the volun-
tary cession by the original states and the general convention
of the people of the United States, and this, as we have seen
in the last section, raises new and difficult questions.
Our first and greatest acquisition was by the purchase of the
Louisiana territory in 1803. It comprised a territory extend-
ing from the Gulf of Mexico on the south to the northern
boundary of the United States, and lay on the west bank of
the Mississippi, excepting at the extreme south, where it ex-
tended to the eastward of the Mississippi, and embraced both
banks and the mouth of that river, thus cutting off communica-
tion with the ocean. -
The northwestern extent of this territory was always a mat-
ter of controversy until settled by the treaty between England
and the United States in 1846.” -
The claim to the Oregon territory, comprising the states of
Washington and Oregon, was not allowed to rest alone upon
the Louisiana purchase, but was also based on discovery and
Occupancy.
. The Florida purchase was made in 1819, and in this manner
our territory was extended from the southern boundary of
Georgia on the Atlantic coast, southward to the Gulf of Mexico,
and westward until it joined the Louisiana purchase.
All of California, Nevada, Utah, a portion of Wyoming,
Colorado, New Mexico and the territory of Arizona were ac-
quired from Mexico by the cession of 1848. This was another
peaceful acquisition following close after the defeat of the ced-
ing party in the Mexican war.
Five years later the Gadsden purchase of 1853 added the sec-
ond Mexican territory, now included within the territories of
Arizona and New Mexico. The purchase from Alaska in 1867
was, like the acquisition of Louisiana, a purchase pure and
simple, and is the last of the territory acquired in this manner.
Cession of Territory by Tea as in 1850.-The state of Texas
ceded a large tract of land, which now constitutes a portion
1 Am. & Ocean Ins. Co. v. Bales of 22 Whart. Int, Law Dig. 173.
Cotton, 1 Pet. 541–43.
§§ 183, 184.] THE PUBLIC DOMAIN. 223.
of the states of Kansas, Colorado and the territory of New
Mexico.
SEC. 183. Annexation of Independent Countries.—When
Texas had acquired her independence from Mexico, she took
her place as a sovereign nation, and, upon the close of hostil-
ities with Mexico, Texas became actually an independent na-
tion. The annexation of Texas as a state, with all the powers
and capacities of statehood, presented a new question, different
from any other which had before been passed upon by congress,
that is, the capacity of the nation to combine with other na-
tions without the consent of the states."
SEC. 184. Acquisition of Discommected Territory.—The ac-
quisition of disconnected territory not contiguous to some por-
tion of the public domain cannot always be justified upon the
same ground which satisfied those who doubted the constitu-
tional power to extend the original limits of the United States.
President Jefferson and the other close constructionists could
very justly say that the nation was bound by the law of self-
preservation to remove the dangerous ownership of any con-
tiguous territory, but these arguments would not justify the
addition to the United States of distant provinces not naturally
or actually contiguous to our territory, and the ownership and
control of which, in other hands, could not be said to consti-
tute present or probable menace to our safety or prosperity.”
1 No question has ever been raised
as to the power; it clearly falls
within the same principles invoked
in acquiring Louisiana and Florida.
2. As we have shown, such a power
was believed to exist by one of the
most influential of the members of
the convention, James Wilson. He
expressly mentions it in his argu-
ment in 1782 (1 Works, 559), as an at-
tribute of national existence. The
question then is, was the power ex-
cluded by the terms of the consti-
tution, not was it granted. Judge
Story continues: “Under the form of
a cession, we may become united to
a more powerful neighbor or rival,
and be involved in European or other
foreign interests and contests to an
interminable extent. And if there
may be a stipulation for the admis-
sion of foreign states into the Union,
the whole balance of the constitu-
tion may be destroyed, and the old
states sunk into utter insignificance.
It is incredible that it should have
been contemplated that any such
overwhelming authority should be
confided to the national government
with the consent of the people of the
old states. If it exists at all, it is un-
foreseen, and the result of a sover-
eignty intended to be limited, and
yet not sufficiently guarded. . . .
The treaty-making power must be
construed as confined to objects with-
in the scope of the constitution. And,
although congress have authority to
admit new states into the firm, yet
it is demonstrable that this clause
had sole reference to the territory
then belonging to the United States,
224. THE PUBLIC DOMAIN. [Š 184.
The purchase of the territory of Alaska must be justified on
other grounds than those of the exercise of necessary or proper
means to effect an end within the objects enumerated in the
constitution.
Judge Story, in his Commentaries, says: “There is no pre-
tense that the purchase or cession of any foreign territory is
within any of the powers expressly enumerated in the consti-
tution. It is nowhere in that instrument said that congress,
or any other department of the national government, shall
have a right to purchase or accept of any cession of foreign
territory. The power itself (it has been said) could scarcely
have been in the contemplation of the framers of it. It is, in
its own nature, as dangerous to liberty, as susceptible of abuse
in its actual application, and as likely as any which could be
imagined, to lead to a dissolution of the Union. If congress have
the power, it may unite any territory whatsoever to our own,
however distant, however populous, and however powerful.” "
It can scarcely be contended that such a powerfalls within the
argument of Judge Marshall, formulated in his great decision in
McCulloch v. Maryland,” that, within the objects contemplated
by the constitution, every means proper to their accomplish-
ment might be used, whether enumerated or not. His famous
expression is: “Let the end be legitimate, let it be within the
scope of the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited
but consistent with the letter and spirit of the constitution, are
constitutional.” ”
and was designed for the admission
Of the states which, under the ordi-
it was a resulting power, growing
necessarily Out of the aggregate pow-
nance of 1787, were contemplated to
be formed within its old boundaries.
If it be said that it will be
* for the common defense and general
welfare to purchase the territory,
how is this reconcilable with the
strict construction of the constitu-
tion? . . Such were the objec-
tions which were urged against the
cession and the appropriations made
to carry the treaty into effect. The
friends of the measure were driven
to the adoption of the doctrine that
the right to acquire territory was in-
cident to mational sovereignty; that
43 g ge
ers confided by the federal constitu-
tion; that the appropriation might
justly be vindicated upon this ground,
and also upon the ground that it was
for the common defense and general
welfare. In short, there is no possi-
bility of defending the constitution-
ality of this measure but upon the
principles of the liberal construction
which has been, upon other Occa-
sions, so earnestly resisted.” Story
On Const., sec. 1280.
1 Story’s Com., sec. 1280.
24. Wheat. 316.
8 Bryce's Am. Com. 370.
§ 185.] THE PUBLIC Doxtain. 225
To justify the acquisition of such territory requires a still
further stretch of power, and no argument can stop short of
the one advanced by Judge Wilson, as heretofore pointed out,"
maintaining that there is an inherent power in the nation, in-
cluding all objects legitimately within the national jurisdiction
which have not been reserved to the states.”
SEC. 185. The Governmental Establishment of Louisiana.--
“In the acquisition of Louisiana came the first new territory to
the United States.
“Louisiana was acquired in the spring of 1803; an extra
session of congress was called to ratify the treaty of acquisition,
and to provide for the occupation and government of the new
possession.”
“It was provided ‘that until the expiration of the present
1 Ante, sec. 180.
2 Bryce's Am. Com. 368–374, “The
history of the United States is in a
large measure a history of the argu-
ments which sought to enlarge or re-
strict the import of the constitution.
One school of statesmen urged that a
Jax construction would practically
leave the United States at the mercy
of the national government, and re-
move those checks on the latter which
the constitution was designed to cre-
ate; while the very fact that some
powers were specifically granted
must be taken to import that those
not specified were withheld, accord-
ing to the old maxim eacpressio wavius
eacclusio alterius, which Lord Bacon
concisely explains by Saying, ‘as ex-
ception strengthens the force of a
law in cases not excepted, so enu-
meration weakens it in cases not enu-
merated.” It was replied by the op-
posite school that to limit the powers
of the government to those expressly
set forth in the constitution would
render that instrument unfit to serve
the purposes of a growing and chang-
ing nation, and would, by leaving
men no legal means of attaining nec-
essary but originally uncontemplated
aims, provoke revolution and work
destruction of the constitution itself.
. . . This latter contention derives.
much support from the fact that
there were certain powers that had
not been mentioned in the constitu-
tion, but which were so obviously in-
cident to a national government that
they must be deemed to be raised by
implication. For instance, the only
offenses which congress is expressly
empowered to punish are treason,
the Counterfeiting of the coin or Se-
curities of the government, and pi-
racies and other offenses against the
law of nations. But it was very
early held that the power to de-
clare other acts to be offenses against
the United States, and punish them
as such, existed as a necessary ap-
pendage to various general powers.
So the power to regulate commerce
covered the power to punish offenses
obstructing commerce; the power to
manage the postoffice included the
right to fix penalties on the theft of
letters; and in fact a whole mass of
criminal law grew up as a sanction
to the civil laws which congress had
been directed to pass.” Bryce's Am.
Com. 370.
8The method of ruling this terri-
tory furnishes the best illustration of
the power which the United States
possesses in such cases. -
15
226 THE Public Douais. [š 185.
session of congress, unless provision for the temporary govern-
ment of the said territories be sooner made by congress, all the
military, civil and judicial powers exercised by the officers of
the easisting government' (the French) of the same shall be
vested in such persons, and shall be ea!ercised in such a manner,
as the president of the United States shall direct, for maintain-
ing and protecting the inhabitants of Louisiana in the free en-
joyment of their liberty, property and religion.’”
This bill emanated from a select committee, of which Mr.
John Randolph was chairman; “but,” says Senator Benton,
“those who are familiar with the inside working of the legis-
! “Touisiana, being a French col-
ony, was originally governed by the
custom of Paris and such royal ordi-
nances as were applicable. In Au-
gust, 1769, when Louisiana passed
under the dominion of Spain, the
Spanish governor, O'Reilly, published
a collection, or rather an abstract,
of the administrative regulations
adopted in the Spanish colonies and
a few leading principles contained
in the Spanish laws, referring for
further elucidations to the text of
Partidas, the Recopolacion of the In-
dies, etc., but at the same time re-
taining in full force, until further
orders (which have never been given),
the French laws, such as they were
at the time Spain took possession
of the Country. In the meantime,
the administration of justice being
chiefly in the hands of Frenchmen
(except in the city of New Orleans),
they continued to be governed alto-
gether by the French laws, save only
in Cases where the few rules con-
tained verbatim in O’Reilly's ordi-
\nance positively applied. Things re-
mained in this situation until the
government of the United States
took possession of the province in
1803, when the increasing commerce
of New Orleans brought into action
the whole body of the Spanish laws,
and especially the laws of Toro and
the ordinance of Bilboa, which last
is regarded as the text in commer-
cial matters. Everything in the an-
cient laws repugnant to the con-
stitution of the United States was.
taken away, and all other subsisting
laws were confirmed by the act of
Congress of the 26th of March, 1804,
chapter 391, which also gave the right,
of trial by jury in all criminal cases
of a capital nature, and in all civil
and criminal cases, if required by
either party. In 1808 the civil code.
was adopted, which is principally a
transcript of the Code Napoleon or
civil code of France. Where that is
silent, its omissions are supplied by a
resort to principles derived from the
Roman law and the codes founded
On it, including the laws of Spain,
France, and the commentaries upon.
them. The works of elementary
writers and the English and Ameri-
can Reporters are cited in the courts,
not as binding authority, but as the
Opinions of learned men entitled to
respect and attention. A regular
series of reports of the decisions of
the supreme court of the state is.
published by Mr. Martin, one of the
judges. A civil suit is commenced
by a petition or libel, setting forth
briefly the nature of the demand, to.
which the defendant answers, and
the cause is set down for hearing
without any special or dilatory plead-
ings. The trial is by jury only when
required by either of the parties.”
3 Wheat. 202, note 1. See also 5.
Wheat. (App.), p. 31.
§ 185.] THE PUBLIC DOMAIN. 227
lative machinery know very well that the bill came from the
department of state, supervised by the president himself.” In
this instance the special message of the president brought the
subject before congress and asked for “temporary provision”
for the government of the territory.
The bill was well calculated to startle a people who regarded
any form of government except a republican one as despotic or
anarchial. y
It continued in force the same form of government, with the
identical magistrates, which had been established by the Span-
ish and French government"—putting the president in the place
of the king of Spain, putting all the territorial officers in the
place of the king's officers, and placing the appointment of
all these officers in the president alone, without reference to
the senate. Nothing could apparently be more incompatible
with our institutions than such a government—a mere contin-
uation of the Spanish-Franco administration, in which all pow-
ers, civil and military, legislative, executive and judicial, were
in the intendant-general representing the president, who occu-
pied the place of king.”
The inhabitants of the ceded territory, far from possessing
political rights, were punishable arbitrarily for presuming to
meddle with political subjects. g
Not only was the nature of the government thus continued
wholly incompatible with our constitution, but its machinery
and appointment of officers was equally so. They were to be
appointed by the president without the advice and consent of
the senate. - -
The American governor who was to replace the Spanish in-
tendant-general in that important province, and the judges who
were to replace the royal cabildo in the city of New Orleans,
were not the “inferior officers” whose appointment, by the
constitution, would west in the president alone.
In no territory organized under the ordinance of 1787 were
these officers so considered. There was a complete incompati-
bility with our constitution and the spirit of our constitution—
first, in the governmental establishment; secondly, in the ap-
1 For the Spanish laws, see ante, The great father of democracy actu-
p. 226, note 1. ally exercising the functions of a
* The position is almost ludicrous. king!
228 THE PUBLIC DOMAIN.
[Š 185.
pointment of the officers to administer it; thirdly, the depart-
ure from the model territorial regulations of the ordinance of
1787. Such a bill, so startling in its provisions and so novel in
a republic of Anglo-Saxon Origin, could not pass without oppo-
sition from that jealous republican party,’ which had just come
into power, and come in on the cry of saving the constitution
from extension by loose construction.
On the acquisition of Florida sixteen years later the same
course was pursued. The Louisiana act of October, 1803, was
copied for Florida in March, 1819. All powers exercised there
by the king’s officers were to be exercised, until the end of the
Session of the next congress, by such persons as the president
should direct. That act was approved by President Monroe,
without a dissenting voice from any member of his cabinet.”
The Ordinance of 1787 was taken as the basis of the territo-
rial government established by the act of 1823, with modifica-
tions which assimilated it to the act for the government of the
Orleans territory. It is clear
from this action by two presi-
1 The students should bear in mind
that the ancient “Republican party.”
was in doctrine the opposite of the
present party of that name. The old
Republican party was the party of
Jefferson, the “Democratic Repub-
lican * party. Its opponent was the
Pederal party, or, as we would say,
the Nationalists.
Mr. James Elliott, of Vermont (Re-
publican), seconded the motion of
Mr. Griswold, saying: “He would
never consent to delegate, for a single
moment, such extensive powers to the
president, even over a territory; such
a delegation of power was unconsti-
tutional.” Mr. Dana, of Connecticut
(Federal), expressed himself thus:
“The president may, under this au-
thority, establish the whole code of
Spanish laws, however contrary to
our own, appoint whomsoever he
pleases as governors and judges, and
remove them according to his pleas-
ure; thus uniting in himself all
power — legislative, judicial and ex-
ecutive.”
The reply to these objections re-
minded the objectors that this was
a territory — not a state; and that
the constitution had nothing to do
with it. Thus, Mr. Rodney (Cesar
Augustus), of Delaware (Republican):
“There is a wide distinction between
States and territories, and the consti-
tution appears clearly to indicate it.
In the territories of the United States,
under the Ordinance of congress, the
governor and judges have a right to
make laws. Could this be done in a
State? I presume not. It shows that
Congress have a power in the terri-
tories which they cannot exercise in
the states, and that the limitations
of power, found in the constitution,
are applicable to states and not to
territories.” Benton’s Ex. Dred Scott
Dec., p. 56.
2 It was a strongly southern cab-
inet. Benton says: “General Jack-
son, the governor, took care that
power should be no “barren sceptre’
in his hands.” Ex. Dred Scott Dec.,
p. 72. -
§ 186.] TEIE PUBLIC DOMAIN. 229
dents and three congresses that no opinion was entertained
that the benign provisions of the national constitution had any
force or efficacy in the territories."
SEC. 186. Effect of Change of Government on Political and
Private Law and Civil Rights.--It is a general rule of public
law, recognized and acted upon by the United States throughout
all periods, that whenever political jurisdiction and legislative
power over any territory, or the allegiance of its inhabitants,
are transferred from one nation or sovereign to another, that
the society itself is not disbanded or disorganized, nor are the
municipal laws of the community — that is, laws which are
intended for the protection of private rights—abrogated or
changed by the creation or selection of the new government or
sovereign.” By the change, lawful public property passes from
One government to the other, but private property remains as
before, and with it those municipal laws which are designed to
secure its peaceful use and enjoyment.
All laws, ordinances and regulations in conflict with the
political character, institutions and constitution of the new
government are abrogated unless expressly continued in force.
Upon the cession of foreign territory to the United States,
the laws of the country in support of an established religion,
or abridging the freedom of the press, or authorizing cruel and
unusual punishments, and the like, would at Once cease to be
1 Cf. Von Holst's Const. Law, 183. tablished. It was stated very clearly
The learned doctor does not distin-
guish between the constitutional
rights of the inhabitants and their
political rights. -
2This is the ground upon which
Justice Chase holds that the state of
Texas was not dissolved by the act
of secession and the creation of an
unlawful government. “It is not
difficult to see that in all these senses
the primary conception (of the state)
is that the people, in whatever ter-
ritory dwelling, either temporarily
or permanently, and whether organ-
ized under a regular government, Or
united by looser and less definite re-
lations, constitute the state.
“This is undoubtedly the funda-
mental idea upon which the republi-
can institutions of our country are es-
by an eminent judge (Mr. Justice
Paterson, in Penhallow v. Doane’s
Adm’rs, 3 Dall. 93) in one of the earli-
est cases adjudicated by this court,
and we are not aware of anything in
any subsequent decision of a differ-
ent tenor.” “Our conclusion, there-
fore, is, that Texas continued to be a
state of the Union, notwithstanding
the transactions to which we have
referred—the abdication of the gov-
ernment and the treason of the citi-
zen.” Texas v. White, 7 Wall. 700,
726. These acts being void were of
no effect, and so long as the United
States was endeavoring to guar-
antee a republican form of govern-
ment, it could not admit that the
state was dissolved.
230 THE PUBLIC DOMAIN. [š 187.
of obligatory force without any declaration to that effect; and
the laws of the country. On other subjects would necessarily
be superseded by existing laws of the new government upon
the same matters. But with respect to laws affecting private
rights, the possession, use and transfer of property, and de-
signed to secure good Order and peace in the community, and
promote its health and prosperity, which are strictly of a mu-
nicipal character, the rule is general, that a change of govern-
ment leaves them in force until, by direct action of the new
government, they are altered and repealed."
SEC. 187. Civil Rights Secure — Political Rights There Are
None.—The people of the United States, as sovereign owners
of the national territories, have supreme power over them and
their inhabitants. In the exercise of this sovereign dominion
they are represented by the government of the United States,
to whom all the powers of government over that subject have
been delegated, subject only to such restrictions as are ex-
pressed in the constitution, or are necessarily implied in its
terms, or in the purposes and objects of the power itself; for
it may well be admitted in respect to this, as to every power
of society over its members, that it is not absolute and unlim-
ited. But in ordaining government for the territories and the
people who inhabit them, all the discretion which belongs to
legislative power is vested in congress; and that extends, be-
yond all controversy, to determining by law, from time to time,
the form of the local government in a particular territory, and
the qualifications of those who shall administer it.
It rests with congress to say whether, in a given case, any
of the people resident in the territory shall participate in the
election of its officers or the making of its laws; and it may
therefore take from them any right of suffrage it may have pre-
viously conferred, or at any time modify or abridge it, as it
may deem expedient.
The right of local self-government, as known to our system
as a constitutional franchise, belongs, under the constitution, to
the states and to the people thereof, by whom that constitu-
tion was ordained, and to whom, by its terms, all power not
conferred by it upon the government of the United States was
1 Chicago & Pac. Ry. Co. McGlinn, ican Ins. Co. v. Canter, 1 Pet. 542;
114 U. S. 546, 547. See also Amer- Halleck, Int. Law, ch. 34, Sec. 14.
$188, 189.] TEIE PUIBLIC DOMAIN. 231
expressly reserved. The personal and civil rights of the in-
habitants of the territories are secured to them, as to other
citizens, by the principles of constitutional liberty, which re-
strain all the agencies of government, state and national; their
political rights are franchises which they hold as privileges in
the legislative discretion of the congress of the United States.
This doctrine was fully and forcibly declared by the chief jus-
tice delivering the opinion of the court in Wational Bank v.
County of Yankton."
SEC. 188. Colonial Dependencies May be Continued — No
Territorial Government Need be JErected.—As we have seen,
the government has sovereign power over the territorial pos-
sessions which it acquires unless restricted by some stipulation
contained in the treaty of cession and which becomes by the
provision of the statute a part of the supreme law of the land.
Such territory does not become entitled to self-government.
It is not incumbent upon the United States to establish a terri-
torial form of government, but congress may provide for the
government of the territory in such manner as it deems best.
The United States has been in possession of and has exer-
cised such sovereignty over a large extent of country, either
unoccupied or occupied only by Indian tribes, with whom were
mingled a few white settlers.”
The fact of such occupancy by the Indian tribes does not
prevent the exercise of the jurisdiction by the United States.”
SEC. 189. Effect of Admission of a State on Private Titles to
Iland in the Territory.—“In the debate in the senate in June,
1850, on the act for the admission of California, a motion to
amend the act by requiring California, before her admission, to
pass in convention an ordinance providing, among other things,
“that she relinquishes all title or claim to tax, dispose of, or in
any way to interfere with the primary disposal by the United
States of the public domain within her limits,” was opposed by
Mr. Douglas and Mr. Webster as unnecessary, and was defeated
1 101 U. S. 129; Murphy v. Ramsay,
114 U. S. 44. See also American
Ins. Co. v. Canter, 1 Pet. 511; United
States v. Gratiot, 14 Pet. 526; CrOSS
v. Harrison, 16 How. 164; Dred Scott
*W. Sanford, 19 How. 393.
* First Nat. Bank v. Yankton Co.,
101 U. S. 129; In re Lane, 135 U. S.
443.
3Langford v. Monteith, 102 U. S.
145. See also Mormon Church v.
United States, 136 U. S. 1; Ex parte
Bollman, 4 Cranch, 75.
232 THE PUBLIC DOMAIN. [Š 189.
by a vote of thirty-six to nineteen. In the course of the debate,
Mr. Douglas, after showing that the United States acquired.
title to the public lands, not by virtue of their sovereignty, or
by deeds of cession from the old states, or by treaty of cession
from France, Spain or Mexico, and referring to the provision
of the constitution authorizing congress “to dispose of and make
all needful rules and regulations concerning the territory or
other property of the United States,’ said: ‘This provision au-
thorizes the United States to be and become a land-owner, and
prescribes the mode in which the lands may be disposed of and
the title conveyed to the purchaser. Congress is to make the
needful rules and regulations upon this subject. The title of
the United States can be divested by no other power, by no
other means, in no other mode, than that which congress shall
sanction and prescribe. It cannot be done by the action of the
people or legislature of a territory or state.” And he supported
this conclusion by a review of all the acts of congress under
which states had theretofore been admitted. Mr. Webster said
that these precedents demonstrated that ‘the general idea has
been, in the creation of a state, that its admission as a state has
no effect at all on the property of the United States lying
within its limits,” and that it was settled by the judgment of
this court in Pollard v. Hagan,' ‘that the authority of the
TInited States does so far extend as, by force of itself, proprio
vigore, to exempt the public lands from taxation, when new
states are created in the territory in which the lands lie.’”
“In Gibson v. Chouteau, 13 Wall. 92, 99, Mr. Justice Field,
delivering the judgment of this court, said: ‘With respect to
the public domain, the constitution vests in congress the power
of disposition and of making all needful rules and regulations.
That power is subject to no limitations. Congress has the ab-
solute right to prescribe the times, the conditions, and the mode
of transferring this property, or any part of it, and to desig-
nate the persons to whom the transfer shall be made. No state
legislature can interfere with this right or embarrass its exer-
cise; and, to prevent the possibility of any attempted interfer-
ence with it, a provision has been usually inserted in the com-
13 How. 212, 224. 31st Cong., 1st sess., vol. 21, p. 1814;
2 Van Brocklin v. Tennessee, 117 vol. 22, p. 848, and secs. 960, 989, 1004;
TJ. S. 164, 165. See also Cong. Globe, 5 Webster's Works, 395, 396, 405.
§§ 190, 191.] THE PUBLIC DOMAIN. 233
pacts by which new states have been admitted into the Union,
that such interference with the primary disposal of the soil of
the United States shall never be made.””” -
SEC. 190. The Partition of Jurisdiction by Admission.—Upon
the admission of a state into the Union, the state doubtless ac-
quires general jurisdiction, civil and criminal, for the preserva-
tion of public order, and the protection of persons and prop-
erty, throughout its limits, except where it has ceded exclusive
jurisdiction to the United States. The rights of local sover-
eignty, including the title to lands held in trust for municipal
uses, and in the shores of navigable waters below high-water
mark, west in the state and not in the United States.”
SEC. 191. Effect of Transfer of Title on Permanent Immov-
able Structures.—Where the inhabitants or residents of a do-
main belonging to a nation erect buildings and structures of a
permanent character upon soil to which they have no title,
such structures become a part of the land and pass with the
deed of cession, unless there is some reservation in the treaty
with the ceding country. In the same manner all permanent
forts and appurtenances thereto pass with the ground of the
territory.”
Jimitations of Subjects Here Treated.—The doctrine which
obtained in relation to the ownership of lands and mineral
lands, the rights of riparian owners living upon the banks of
streams, or owning land bordering on running streams, the
ownership and jurisdiction over forts, arsenals and districts
possessed by the United States, the littoral rights of owners
1 The mode of acquiring private
ownership must be treated with the
subject of “Property.” See? Wilson's
Works, 496, note.
Public and unoccupied lands to
which the United States have ac-
quired title, either by deeds of ces-
sion from other states, or by treaty
with a foreign Country, Congress,
under the power conferred upon it
by the constitution “to dispose of
and make all needful rules and regu-
lations respecting the territory or
other property of the United States,”
has the exclusive right to control and
dispose of it, as it has with regard to
other property of the United States;
and no state can interfere with this
right, or embarrass its exercise. Van
Brocklin v. Tennessee, 117 U. S. 167,
168. See also United States v. Gra-
tiot, 14 Pet. 526; Pollard v. Hagan,
3 How. 212; Irvine v. Marshall, 20
How. 558, 563; Thompson v. Utah, 16.
Sup. Ct. R. 620.
2 Van Brocklin v. Tennessee, 117.
TJ. S. 167. See also New Orleans v.
TJnited States, 10 How. 662, 737; Pol-
lard v. Hagan, 3 How. 212; Good-
title v. Kibbe, 9 How. 471; Doe v.
Beebe, 13 How. 25; Barney v. Keo-
kuk, 94 U. S. 324. -
3 Kincaid v. United States, 150.
TJ. S. 483.
234. TEIE PUBLIC DOMAIN. [$192.
upon the shores of lakes and seas, the disposition of the public
land by survey and sale, are not properly a part of this chap-
ter, and will be treated under their proper subjects in subse-
quent pages of the work.
SEC. 192. Status of Indian Tribes.—“From the beginning
of the government to the present time, they' have been treated
as ‘wards of the nation,’ ‘in a state of pupilage,” “dependent
political communities,’ holding such relations to the general
government that they and their country, as declared by Chief
Justice Marshall in Cherokee Wation v. Georgia, 5 Pet. 1, 17,
* are considered by foreign nations, as well as by ourselves, as
being so completely under the sovereignty and dominion of the
United States, that any attempt to acquire their lands, or to
form a political connection with them, would be considered by
all as an invasion of our territory and an act of hostility.” It
is true, as declared in Worcester v. Georgia, 6 Pet. 515, 557, 569,
that the treaties and laws of the United States contemplate
the Indian Territory as completely separated from the states,
and the Cherokee nations as a distinct community, and (in the
language of Mr. Justice McLean in the same case, p. 583) that
‘in the executive, legislative and judicial branches of our gov-
ernment we have submitted, by the most solemn sanction, the
existence of the Indians as a separate and distinct people, and
as being vested with rights which constitute them a state or
separate community.”
“In United States v. Kagama, 118 U. S. 375, 379, the court,
after observing that the Indians were within the geographical
limits of the United States, said: ‘The soil and the people
within these limits are under the political control of the gov-
ernment of the United States, or of the states of the Union.
There exists within the broad domain of sovereignty but these
two. They were and always have been regarded as having
a semi-independent position when they preserved their tribal
relations, not as states, not as nations, not as possessed of the
full attributes of sovereignty, but as a separate people, with
the power of regulating their internal and social relations, and
thus far not brought under the laws of the Union or of the state
within whose limits they resided. The power of the general
1 The reference is to the tribes, not examined with other private persons,
the individual. Their status will be citizens, aliens, denizems, etc.
§ 193.] THE PUBLIC DOMAIN. 235
government over those remnants of a race once powerful, now
weak and diminished in numbers, is necessary to their protec-
tion, as well as to the safety of those among whom they dwell.’”
SEC. 193. Mineral Lands—Acquisition and Disposition by
the Government.—The English law holding that the right to
all mines was in the Crown has little bearing upon the policy
of the United States in relation to its mineral lands.
Upon the same principle that a title once possessed by the
general government can be divested only by the grant of that
government,” it follows that the title to mineral lands can only
be obtained from it under the provisions of acts of congress in
relation thereto. -
The supreme court has indicated sufficiently the present state
of the law in that regard, and it is plain from their statement
of the legislation of congress that “no title from the United
1 Cherokee Nation v. Kansas Ry.
Co., 135 U. S. 654.
“It is true that it is occupied by
the tribe of Cherokee Indians. But
it has been assigned to them by the
TJnited States as a place of domicile
for the tribe, and they hold and Oc-
cupy it with the assent of the United
States, and under their authority.
We think it too firmly and clearly
established to admit of dispute that
the Indian tribes residing within the
territorial limits of the United States
are subject to their authority.” Cher-
okee Nation v. Kansas Ry. Co., 135
TJ. S. 654.
How Regarded by the States.—The
supreme court of New York says:
“The act proceeds to pardon Tommy
Jemmy, otherwise called Soo-non-gize,
an Indian of the Seneca tribe, for
the murder of an Indian woman, al-
leged to have been committed within
the Seneca reservation. This statute
not only asserts the exclusive jurisdic-
tion of this state over all crimes or of
fenses committed within the Indian
reservations, but it expressly negates
any jurisdiction to the Indian tribes
to take cognizance of offenses com-
mitted.therein, even by those of their
own tribes. If then, our jurisdiction
exclusively reaches them, if they
have no right to punish offenses, if
they receive protection from Our
government, are subject to our leg-
islation, being born within the state,
they must owe to this government a
permanent allegiance, and they can-
not be aliens. It does not affect the
Question or make them less citizens
that we do not tax them or require
military or other services from them.
This is a mere indulgence arising
from their peculiar situation. For a,
long succession of years, we have ex-
ercised an entire Supremacy over all
the tribes within the state and have
regulated by law their internal con-
Cerns, their contracts and their prop-
erty. In One Sense only they may be
considered as having the semblance
of national rights, as regards their
right to retain to their own use, or to
dispose, under the regulations of our
government, of their lands. In every
other sense they are as completely
the subjects of Our laws as any other
citizens; and we must conclude that
they are citizens.” Jackson v. Good-
ell, 20 Johns. 187–92. 4.
22 Wilson's Works, 496–98; Jack-
son v. Frost, 5 Cow. 346; 3 Kent,
Conn.”378.
236 THE PUBLIC I)OMAIN. [Š 194.
States to land known at the time of the sale to be valuable for
its minerals of gold, silver, cinnabar or copper can be obtained
under the pre-emption or homestead laws or the town-site laws,
or in any other way than as prescribed by the laws specially
authorizing the sale of such lands, except in the states of Michi-
gan, Wisconsin, Minnesota, Missouri and Kansas. We say
‘land known at the time to be valuable for its minerals,’ as
there are vast tracts of public land in which minerals of differ-
ent kinds are found, but not in such quantity as to justify ex-
penditures in the effort to extract them. It is not to such lands
that the term ‘mineral,’ in the sense of the statute, is appli-
cable. In the first section of the act of 1866 no designation is
given of the character of mineral lands which are free and
open to exploration. But in the act of 1872, which repealed
that section and re-enacted one of broader import, it is “valu-
able mineral deposits’ which are declared to be free and open
to exploration and purchase. The same term is carried into
the Revised Statutes. It is there enacted that “lands valuable
for minerals’ shall be reserved from sale, except as otherwise
expressly directed, and that “valuable mineral deposits’ in
lands belonging to the United States shall be free and open to
exploration and purchase. We also say lands known at the
time of their sale to be thus valuable, in order to avoid any
possible conclusion against the validity of titles which may be
issued for other kinds of land, in which, years afterwards, rich
deposits of mineral may be discovered. It is quite possible
that lands settled upon as suitable only for agricultural pur-
poses, entered by the settler and patented by the government
under the pre-emption laws, may be found, years after the
patent has been issued, to contain valuable minerals. Indeed,
this has often happened.
“We therefore use the term ‘known to be valuable at the time
of sale,” to prevent any doubt being cast upon titles to lands
afterwards found to be different in their mineral character
from what was supposed when the entry of them was made
and the patent issued.”"
SEC. 194. Dependent Colonial Possessions.— Just at this time
a question presents itself to the people of the United States
1 Deffeback v. Hawke, 115 U. S. United States, 123 U. S. 307; Davis
392. See also Col. C. & I. Co. v. v. Weibbold, 139 U. S. 507.
§ 195.] THE PUBLIC DOMAIN. 237
which has never been definitely acted upon and determined,
but which it seems imperative shall now receive a definite so-
lution at the hand of the competent tribunal. The recent war
with Spain has rendered it probable that the United States
shall enter into relations with the Spanish colonies occupying
the adjacent West India Islands and the distant islands in the
Phillipian group.
SEC. 195. Nature of the Question and Ancient Policy—
President Jefferson's View.—The word “colony” always signi-
fies a body of cultivators transplanted by the government to a
distant possession, and governed and protected there by the
mother country, of which it is to be always the dependent—
never the equal. The term has never been applied to our ter-
ritories, and cannot be without a total change in their nature.
Distance, governmental transplantation, perpetual inferiority,
is their (the colonies) inexorable characteristic.
As such the question of colonies is purely and simply a polit-
deal question, for the determination of the political power; and
as such was determined some fifty-odd years ago by Our govern-
ment. - --
Mo Distinct Colonies.—The determination was that the United
States would have no colony which required a navy to guard
it and to keep open communication with it.
Cuba an Eºception.— And that determination, by its import
and express terms, admitted Cuba as an exception—that island
being near enough to our coast to be safely reached without
the convoy of a fleet, and strong enough in its natural and ar-
tificial defenses to be protected by land forces. But while this
exception of Cuba was made, all designs upon it inconsistent
with fair purchase or honorable conquest in just war were
sternly repudiated. The doctrine of the old school was that,
geographically, Cuba belonged to the New World, and to the
North American part of it, and to the United States as the
chief power of North America; and politically to Spain; and
that while Spain declined to sell and gave us no just cause for
war, she was to be undisturbed in the possession of that island—
as much so as in the island of Cadiz. But no other power was
allowed to get it from Spain, either by purchase or conquest."
! It is not the purpose to mention, political policy (e. g., the Monroe doc-
much less discuss, doctrines of mere trine, which grew out of the idea
238 THE PUBLIC DOMAIN. [š 196.
If it was to be sold, the United States had the pre-emption right
of purchase; if it is to be conquered, we, the conqueror. But
all this open and above board — no pretext, wars, no false
claims, no fictitious quarrels, no annoying, no bullying, no
forced sale."
SEC. 196. The Political Status of Colonies.—Blackstone says
of colonial establishments: “Plantations or colonies, in distant
countries, are either such where the lands are claimed by right
of occupancy only, by finding them desert and uncultivated, and
peopling them from the mother country; or where, when al-
ready cultivated, they have been either gained by conquest, or
ceded to us by treaties. And both these rights are founded upon
the law of nature, or at least upon that of nations. But there
is a difference between these two species of colonies with re-
spect to the laws by which they are bound. For it hath been
held that if an uninhabited country be discovered and planted
by English subjects, all the English laws then in being, which
are the birthright of every subject, are immediately there in
force. But this must be understood with very many and very
great restrictions. Such colonists carry with them only so much
of the English law as is applicable to their own situation and
here noticed). This section is jus-
tifiable only as illustrating the Scope
of the constitutional question in-
volved, and to make clear the differ-
ence between acquiring Contiguous
territory to be ultimately admitted
to statehood and the acquisition of
permanent colorial establishments.
1 Jefferson’s Letters, quoted in Ben-
ton’s Ex., pp. 24, 25, note. Notwith-
standing the protestation against a
desire or intention to expand, the
TJnited States has never declined to
acquire territory. Senator Benton
paints the picture quite graphically.
“Arizona has been acquired; fifty
millions were offered to Mexico for
her northern half, to include Mon-
terey and Saltillo; a vast sum is now
offered for Sonora and Sinaloa, down
to Guaymas; Tehuantepec, Nicara-
gua, Panama, Darien, the Spanish
part of San Domingo, Cuba, with
islands on both sides of the trop-
ical continent. Nor do we stop at
the two Americas, their coasts and
islands, extensive as they are; but,
circumvolving the terraqueous globe,
we look wistfully at the Sandwich
Islands, and on some gem in the
Polynesian group, and, plunging to
the antipodes, pounce down upon
Eormosa in the Chinese sea. Such
were the schemes of the last admin-
istration, and must continue, if its
policy should continue. Over all
these provinces, isthmuses, islands
and ports, now free, our constitution
must spread (if we acquire them, and
the decision of the Supreme Court
stands), overriding and overruling all
anti-slavery in its place, beyond the
power of congress or the people there
to prevent it.” (1857) Benton's Ex.
Dred Scott Dec., p. 29.
§ 196.] THE PUBLIC DOMAIN. 239
the condition of an infant colony; such, for instance, as the
general rules of inheritance, and of protection from personal
injuries.” . . .
“What shall be admitted and what rejected, at what times
and under what restrictions, must, in case of dispute, be de-
cided in the first instance by their own provincial judicature,
subject to the revision and control of the king in council; the
whole of their constitution being also liable to be new-modeled
and reformed by the general superintending power of the leg-
islature in the mother country. But in conquered or ceded
countries, that have already laws of their own, the king may
indeed alter and change those laws; but, till he does actually
change them, the ancient laws of the country remain, unless
such as are against the law of God, as in the case of an infidel
country. -
“Our American plantations are principally of this latter sort,
being obtained in the last century either by right of conquest
and driving out the natives (with what natural justice I shall
not at present inquire), or by treaties; and therefore the com-
mon law of England, as such, has no allowance or authority
there, they being no part of the mother country, but distinct
though independent dominions." They are subject, however,
to the control of the parliament, though (like Ireland, Man,
and the rest) not bound by any acts of parliament unless par-
ticularly named.”
1As we have seen, this view was not
admitted in the colonies.
21 Cooley's Blk. (3d ed.) 106–108.
Judge Cooley says: “This is substan-
tially the condition in which the new
settlements within the territory be-
longing to the United States are
commonly placed by the legislation
of congress until the time arrives
when their population has become
so considerable as to justify their
being received into the Union as
states.” 1 Cooley's Blk. (3d ed.) 107,
note 6. See the latest utterances On.
the subject of the territories. Thomp-
son v. Utah, 18 Sup. Ct. Rep. 620. As
to civil right in Alaska. Endleman,
v. United States, 86 Fed. Rep. 456.
CHAPTER X.
THE SOURCES AND SYSTEMS OF I.A.W.
“It is well to inquire into the real nature of law, the source from which
it proceeds, and the real elements which impart its power and efficacy.
º . How can the definition of Blackstone be reconciled with the fact,
that the sovereign is subject to law 2°– Jas. C. Carter, Am. Bar ASS'n,
1890. -
SEC. 197. Government of Law.—In noticing the development
of American jurisprudence and the establishment of the Amer-
ican constitution, occasion has been taken to notice the princi-
ple, often repeated, that in America is established a government
of law and not of men."
What is intended in American jurisprudence by the constant
repetition of this form of expression “a government of laws,
not Of men P”
Probably as good an answer to the inquiry as can be made
is that all law emanates from the people. -
It is the will of the people that their public affairs as well as
the rights and interests of individuals shall be guided, con-
trolled and moulded in accordance with the laws which are
established by them.
It has been well said that “as a state has claimed precedence
to the people, so in the same inverted course of things, the
government has often claimed precedence of the state. The
ministers, dignified very properly by the application of magis-
trates, have wished, and succeeded in their wish, to be consid-
ered as the rulers of the state.””
The individuals who occupy the positions of trust desig-
1 See ante, secs. 142–166. Chief Jus-
tice Marshall says: “The govern-
ment of the United States has been
emphatically termed a government
of laws and not of men. It will Cer-
tainly cease to deserve this high ap-
pellation, if the laws furnish no rem-
edy for the violation of a vested legal
right. . . . It behooves us then to
inquire whether there be in its [the
government] composition any ingre-
dient which shall exempt it [the gov-
ernment] from legal investigation, or
exclude the injured party from legal
redress.” Marbury v. Madison, 1
Cranch, 137.
2 Chisholm. v. Georgia, 2 Dall. 455.
§§ 198, 199.] THE SOURCES AND SYSTEMS OF LAw. 241
nated as public officers in every case exercise merely an agency
or a trust. All of their acts are in the name of the law. “The
law commands,” or “in the name of this commonwealth, I de-
mand,” is the language of the official, and the warrant for his
action must be in every case the law of the land.
SEC. 198. The Sources of Law.—It is frequently said that it
is the province of the legislative department of government to
make the law, the judiciary to expound it, and the executive
to carry it into effect; and in the outward manifestation of this
separation of the powers of government, the actual fact that
the legislative department is not the Only law-making power
is frequently lost sight of.
As it has been frequently shown that the parliament of Eng-
land is not the only law-making power of England, and that, as
a matter of fact, the largest body of English law is not statutory
law," so it may be shown that a great portion of our law, per-
haps the most important part of it, does not emanate from the
legislative department, and that in fact changes of the law may
take place in which the legislature has no hand.”
SEC. 199. The Supreme Law of the Land.—Article VI, sec-
tion 2, of the United States constitution says: “This constitution,
and the laws of the United States which shall be made in pur-
suance thereof, and all treaties made or which shall be made
under authority of the United States, shall be the supreme law
of the land, and the judges in every state shall be bound thereby,
anything in the constitution or laws of any state to the contrar
notwithstanding.”.” -
In this section of the constitution it will be seen that a most
important body of laws which control and affect the rights of
the nation, the state and the individual emanate from Sources
other than the legislative department, either of the Union or
of the states. - .
The United States was the first among the governments to
provide that treaties duly entered into were a part of the Su-
preme law of the land.” -
This provision was undoubtedly inserted because of the ex-
istence of thirteen separate jurisdictions, each having and exer-
cising governmental powers.
11 Wilson's Works, p. 171 et seg. 8 See ante, sec. 152.
2See post, secs. 208, 209. 4Ware v. Hilton, 3 Dall. 199.
16 .
24.2 THE SOURCES AND SYSTEMS OF LAw. [$ 200.
The Zegislative Branch May be Obliged to Act.— It is well
understood that there may be secret articles in a treaty which
it is not wise to make public, and of a character which only a
legislative power can carry out. It follows that a treaty stip-
ulation for anything of this nature is to be given effect by leg-
islative authority, and the legislature is authorized, and under
public obligation, to give effect to the treaty." -
A treaty may divest rights which have accrued under an ex-
isting law, and the nation may be obliged to give effect to this
treaty divesting the individual rights.” -
SEC. 200. The Common Law is a term which has, with us, a
double significance. In the United States, when we speak of
the common law, the mind of the lawyer naturally reverts to
the system of English jurisprudence, an indefinite and unde-
scribed portion of which was said to be the birthright of the
colonists, and has been adopted in most of the states as a por-
tion of Our jurisprudence. By the common law a great many
of Our most important transactions are governed.
In view of the common law every statute enacted by a state
legislature is construed, and every statute is said to be in dero-
gation of the common law or declaratory of it, unless the sub-
ject is one that was uncertain at common law. The common
law, when predicated of the English system by an Englishman,
has a meaning somewhat different from that just spoken of.
In that connection it would have the same meaning in any
country.
The common law of England meant all of those universal
rules, not the enactment of parliament, which governed the
English people.
Long established usages or customs, especially the custom of
merchants, became a part of the common law, and so after the
Conquest, and during the period of the struggle for English
liberty, there is a constant insistence upon the ancient customs
of the realm.
Of English municipal law, says Wilson, “the greatest and
best proportion was never made by the parliament at all.”
A statute of 25 Henry VIII., chapter 21, section 1, declared
1 Ware v. Hilton, 3 Dall. 272. Davis, 100 U. S. 266; Martin v. Hunter,
2 United States v. Schooner Peggy, 1 Wheat. 373. .
1 Cranch, 103. See also Tennessee v. 3 1 Wilson's Works, p. 170.
§ 201.] THE SOURCES AND SYSTEMS OF LAW. 243
that “this realm is free from subjection to any man's laws, but
Only to such as have been devised, made and obtained within
this realm, for the wealth of the same, or to such as, by suffer-
ance of your grace and your progenitors, the people of this
your realm have taken at their free liberty, with their own con-
sent to be used amongst them, and have bound themselves by
long usage and custom.” "
SEC, 201. The Law Merchant.— The names of Holt and
Mansfield must always stand among those of the great jurists
of the world. Their fame rests almost entirely upon their
labors in incorporating into the English law the maritime or
mercantile law of nations.” Mansfield is justly entitled to the
credit of the development of the modern common law of Eng-
land. A vast portion of the law merchant, as approved by
Mansfield and by him made a part of the common law of Eng-
land, is derived from the civil law. The whole current of au-
thorities from all time establishes the doctrine that the custom
of merchants has always been regarded as a part of the common
law; but it was not until the time of Mansfield that the law
merchant can be said to have exercised a great and controlling
influence upon the jurisprudence of England.
The equitable action of assumpsit was to a large measure the
medium through which Lord Mansfield applied these principles.”
1 * Custom: a species of legislation
by the people themselves, which in
this country and England is the
foundation of the common law itself,
or, in other words, general customs
obtaining by common consent.” Gib-
son, J., in Lyle v. Richards, 9 S. & R.
323–39. .
2See a very valuable note on the
law merchant in 1 Cranch, App.,
note a, *368.
Of Lord Holt, Smith says: “I have
no hesitation in saying that Lord
Bolt alone accomplished more for
English mercantile law than the
whole body of the English judges
prior to his elevation. The present
law with regard to bills of lading
seems to have originated with Lord
Holt. See Evans v. Marlett, 1 Ld.
Raymond, 261. Those who desire to
estimate his powers of mind and
mode of dealing with important legal
questions will do well to peruse his
celebrated judgment in Coggs v. Ber-
nard, Lord Raymond, 909, in which,
availing himself of his acquaintance
with the civil law, he settled the law
relative to bailments on its present
footing.” Smith's Mercantile Law,
p. 27. • ,
3 “It is under the action of assump-
sit that the modern law merchant
has been incorporated into the com-
mon law. In the time of Edward
III. we discover that, in the ordinary
transactions amongst merchants,
that is, members of the trading com-
munity, a distinct law prevailed, of
a more liberal nature than the gen-
eral law, and that it was more sum-
marily and expeditiously exercised.
244 THE SOURCES AND SYSTEMS OF LAW. [š 201.
Mr. Justice Caton, in an opinion in the supreme court of
Illinois, says of the common law, and its connection with the
customary law and the law merchant: “Were we able to ex-
plore the past with certainty, we should probably find that
every essential principle of the common law, before it was
adopted by the decision of any court, could be found in some
precedent custom among the people, and which, by its conven-
ience and justice, so commended itself to the courts that they
recognized and adopted it as a part of the law of the land."
We are, however, able to thus trace to its source but little of the
common law, except that which was adopted from the custom
of merchants. That was so broad in its principles and so com-
prehensive in its objects, there was so much of it relating to
One great subject, that it acquired a name to itself, and for dig-
nity and importance struggled even with the great body of the
This was called the lea; mercatoria.
It had, in all probability, silently
prevailed in London and other com-
mercial towns, in some shape,
throughout the whole of the Anglo-
Saxon times. By the statute 27 Ed-
ward III. (Stat. 2), in each town
where the staple was ordained, a
mayor was to be chosen, skilled in the
law merchant, to do right to every
man according to that law. The lea:
amercatoria is expressly mentioned by
Fortescue. In common Societies of
merchants and in mutual contracts,
says Selden, equity and good con-
science, rather than strict law, is re-
Quired; and he mentions a case in
the time of Edward II., where, follow-
ing up this principle, the defendant
in an action of debt brought, secum-
dwin, legem, mercatoriam, for some
corn sold, was not permitted to wage
his law, though he might have done
so in an ordinary action of debt. It
would seem, too, that merchants had
always been specially favored by hav-
ing a more summary process in the
king's court.” Spence’s Eq. Juris,
247.
Öf this action it is said: “In One
aword, the gist of this kind of action
is, that the defendant, upon the cir-
Cumstances of the case, is obliged by
the ties of natural justice and equity
to refund the money.” 2 Burr. 1012.
1 “The mercantile law of England
is, in point of fact, an edifice erected
by the merchant, with comparatively
little assistance either from the
courts or the legislature. The former
have, in very many instances, only
impressed with a judicial sanction,
or deduced proper and reasonable
Consequences from, those regulations
which the experience of the trader,
whether borrowing from foreigners
or inventing himself, had already
adopted as the most convenient.
When trade began to flourish in this
country, those occupied about it soon
discovered that the law had provided
but few rules for the guidance of
their transactions, and that it was,
therefore, necessary that they should
themselves adopt some regulations
for their own government. Thus
they, in early times, erected a sort of
mercantile republic, the observance
of whose code was insured less by
the law of the land than by force of
opinion and the dread of censure.”
Smith's Mercantile Law, pp. 29, 31.
§ 202.] THE SOURCES AND SYSTEMS OF I.A.W. 245,
common law; hence its name is remembered while its separate
existence has ceased to be. Were we now to strike from the
common law all it has borrowed from, and which once consti-
tuted a distinctive portion of, the law merchant, we should find
it unfitted for the most rural districts of this country; for agri-
culture has become so intimately connected and associated with
commerce that the rules which govern one must seriously affect
the other. With all its avenues of intercommunication, com-
merce now extends itself to the granaries and pasture fields of
the remotest frontiers. Thus dismembered, the common law
would only be a fit code for the government of a fox-hunting
gentry and their dependent serfs.
“While elementary writers and the judges of courts have been
in the habit of speaking of the lea, mercatoria distinctively, they
have for a very long time spoken of it and treated it as a part
of the common law.””
SEC. 202. Unwritten or Customary Law.—The dignity and
importance of customs was made apparent when we mentioned
that the constitution of one of the states, Connecticut, was, for
many years after the adoption of the federal constitution, held
to be in the customs of the people.”
The common law is said to be an unwritten law. It was
classed by Blackstone as the lea, non scripta, and by him said to
include not only general customs, or the common law properly
so called, but also the particular customs of certain parts of the
kingdom, and likewise those particular laws that are by custom
observed in certain districts.”
1 Cook v. Renick, 19 Ill. 601. David
Dudley Fieldsays of the common law
dominion by the silent empire of law.
Ad. Am. Bar Ass'n, 1889, p. 233.
as it existed at the time of the Amer-
ican Revolution, that it was of two
kinds—public and private. The pub-
lic law was good. The private por-
tion, that which related to land and
private relations, was but little ad-
vanced beyond the region of semi-
barbarism. Most of the good which
it had, and of which it has since ac-
cumulated, was the contribution of
the Romans, that magnificent people
which once ruled the world by the
sword, and have since held a half
2 Calder V, Bull, 3 Dall. 386.
81 Cooley (3d ed.), 63. General and
particular customs must be distin-
guished. Judge Story says: “Those
usages which, from their general
prevalence and long-continued rec-
ognition among merchants, have
been received and incorporated into
the law as the custom of merchants,
must not be confounded with the
particular usages of trade. The cus-
tom of merchants is applied to that
collection of rules and principles of
246 THE SOURCES AND SYSTEMS OF L.A.W. [$203.
One need but turn to the examination of the common law
given by the learned commentator to appreciate that by far the
largest portion in bulk of the English law consisted in this un-
Written or common law of the realm."
The evidence of the unwritten law may sometimes, in the first
instance, be obtained by the testimony of witnesses, or, as was
formerly the case, by the examination of the merchants of a
particular locality or guild.”
The final evidence, however, of the common law, which can
be said of all the law, is mainly to be found in the decisions
of the courts of England, or the particular country of which
the common law is said to be a part.
Those decisions, for the first time adopting and announcing
a rule, were said to be a species of judicial legislation, but they
are distinguishable from those judicial edicts which change
established rules.” .
Thus, Spence says, in his Equitable Jurisprudence, the “jus
civil is distinguished from jus praetorium, which, in Bracton’s
sense, is the law formed by the decisions of the judges. This
jus praetorium has been continually enlarged by the common-
law judges, so as to form a very considerable portion of the
common law of England.”*
SEC. 203. Development of the Common Law.—The manner
in which the common law has developed is simple and easily
law which the courts received Orig-
inally from the merchants, but of
which they now take notice ju-
dicially, and which are binding
throughout the realm. These cus-
toms, having been judicially estab-
lished, are no longer in the power of
the merchants, and can no more be
altered or superseded by the acts or
agreements of parties than the other
rules of law. But wherever, in any
Course of business, a particular usage
Obtains, which is general, uniform,
notorious, reasonable, and consistent
with the rules of law, such usage
will be presumed to have entered
into the contemplation of all parties
contracting in reference to the sub-
ject-matter as to which it prevails,
unless the contrary is shown. This
principle, although most frequently
applied in mercantile transactions, is
not restricted to them, but extends
to contracts in all departments of
business, mechanical, agricultural
and professional, upon the principle
that, wherever the knowledge of any
usage or custom is necessary to the
right understanding of an agreement,
it would be unreasonable to deny to
the reader the light enjoyed by the
writer.” Rogers v. Mech. Ins. Co., 1
Story (U. S. Ct.), 608.
1 1 Cooley (3d ed.), 67, 68, and notes.
2 Whitehead v. Walker, 9 M. & W.
514; Renner v. Bank, 9 Wheat. 582.
* See post, Judge-made Law, Sec.
209.
41 Eq. Juris, *124.
§ 204.] THE SOURCES AND systEMs of LAw. 247
tunderstood. Take, for example, a case arising for the first
time in a jurisdiction. In the absence of precedent, reason and
justice are said to be the sole spirit of the law, and in all civil
actions between individuals in reference to property rights and
injuries, Some decision must be reached.
What is the reason and justice of a thing is very often the
question with the court.
In a comparatively recent case the New York court of ap-
peals was called upon to determine the right of the owner of
logs which had been cast by a flood upon the land of a lower
proprietor of the soil, bordering upon the stream. In seeking
for the reason and justice of the matter, resort was had to other
systems of law; and in this case the source resorted to was the
civil law, and the rule of the civil law was expressly adopted
by quoting, as their controlling reason and rule, the language
of the civil law, as expressed by Domat."
We have before referred to a similar instance in reference
to the law of bailments. In this case, not simply a single rule
or a single principle was adopted, but one may truly say that the
whole English law of bailments was framed and formulated
by the adoption of the Roman law by the judge deciding the
case.” .
SEC. 204. The Maritime Law, of which the law merchant
constitutes a branch, is an essential part of the law of nations,”
but it is as much a part of the municipal law of England and
of the United States as it was of the civil law of Rome, because
its customs were a part of the customs of the English people.
1 Sheldon v. Sherman, 42 N. Y. 484;
1 Am. Rep. 569.
2 Lord Holt in Coggs v. Bernard,
id. Raym, 909; 1 Sm. L. C. 369.
3 Mr. Smith, in the introduction to
his Mercantile Law, says: “In ascer-
taining the legal rights arising out
of commercial transactions, it fre-
quently becomes necessary to have
recourse to the volumes of interna-
tional law, frequently to the contem-
poraneous laws of nations. So far
as it affects title to lands, it depends
upon those feudal institutions from
which the rules in our country gov-
erning such property originate. It
is deducible in great part from the
imperial code of Rome, in great part
from the different maritime codes of
ancient Europe; and all these, its
components, while they are inter-
spersed and qualified by a multiplic-
ity of statutory enactments, are
explained, blended and applied, and
the cases for which they have omit-
ted to provide are solved, by the de-
cisions of our English courts of law
and equity.” See Personal Property.
Smith’s Mercantile Law, 18.
248 THE SOURCES AND SYSTEMS OF LAW. [$ 204.
Lord Mansfield says: “The maritime law is not the law of a
particular country, but the general law of nations. Won erit
alia Jęoma, alia Athenias, alºa nºunc, alia posthac, fed et apud
ommes gentes et omni temporo una cademgue lea, oblinebit.” "
It is observable that the law merchant and the maritime law
are not generally distinguished from each other, but are fre-
quently used indiscriminately. Mr. Justice Story applies the
same principle to a commercial case” brought upon a negotia-
ble instrument, observing: “The law respecting negotiable in-
struments may be truly declared in the language of Cicero,
adopted by Lord Mansfield in Zuke v. Zyle (2 Burr. R. 883–
887), to be in a great measure not the law of a single country
only, but of the commercial world.” -
In this case,” notwithstanding the thirty-fourth section of
the judiciary act, which provides that the laws of the several
states, except where the constitution, treaties or statutes shall
otherwise provide, shall be regarded as rules of decision, bind-
ing upon the federal courts, and the highest court of the state
of New York had established a rule upon the question, the
federal court decided contrary to that rule, upon the broad
principle of commercial or maritime law indicated.
Upon the same principle the same court, in a still later case
upon the subject of insurance, held that the federal court was
bound by the general commercial law, independent of the law
of any particular state.
“The questions under our consideration are questions of gen-
eral commercial law, and depend upon the construction of a
contract of insurance, which is by no means local in its char-
acter, or regulated by any local policy or customs.
“Whatever respect, therefore, the decisions of state tribunals.
may have on such a subject, and they certainly are entitled to
a great respect, they cannot conclude the judgment of this.
COurt.
“On the contrary we are bound to interpret this instrument
according to our opinion of its true intent and object, aided by
all the lights which can be obtained from all external sources.
whatsoever, and if the result to which we have arrived differs.
1 See 1 Wilson's Works, 337; 1 Blk. 2 Swift v. Tyson, 16 Pet. 19.
Com. 273. 3 Ibid. ' -
§ 205.] THE SOURCES AND SYSTEMS OF LAW. 249
from that of these learned state courts, we may regret it, but
it cannot be permitted to alter our judgment.”"
The United States courts have uniformly adhered to this
position.”
Anomalous result is that the different parties to the same
series of commercial paper or a commercial transaction may
have different rights and liabilities in reference thereto, accord-
ing to the law of the land, depending upon the place of resi-
dence of the parties and not upon the contract or agreement.
Some of the states have adopted the policy of the decisions of
the federal court in such matters.”
SEC. 205. Fapress Adoption of the Common Law.—The com-
mon law of the various states differs very materially. In some
of the states, the common law of England as it existed prior
to the fourth year of King James I. is expressly adopted by
statutes, and it results as a matter of course that the decisions
of the courts of England subsequent to 1607, the date of the
charter of Virginia, under which the colony was established,
are not considered as binding."
Other states fix the date of the common law so as to include
the common law and all of the statutes in aid thereof prior to
the Declaration of Independence, or prior to some arbitrary
date during the Revolutionary period, so that the student may
easily ascertain the fact in a particular jurisdiction by consult-
ing the statutory or constitutional provision. If no express
rules are fixed, the Declaration of Independence necessarily
limits the period when the common law of England was a part
of the law of the colonies.”
1 Carpenter v. Providence-Wash-
ington Ins. Co., 16 Pet. 494-511.
2 Railway Co. v. National Bank, 102
TJ. S. 14.
3 Trehon v. Brown, 14 Ohio, 486.
As early as 1823 Mr. Dane said: “A
serious evil we are fast running into
in most of our states. This inunda-
tion of books made in different states
and nations will increase until we
can shake off more of our local no-
tions. Our true course is plain; that
is, by degrees to make our laws more
uniform and natural, especially when
there is nothing to make them oth-
erwise but local feeling and preju-
dices. We have, in the common and
federal law, the materials of national
uniformity in many cases. We have
a national judiciary promoting this
uniformity, , and we have lawyers
learned, industrious, and able to sec-
Ond the judiciary. We only want a
general efficient plan supported with
energy and national feelings.” 1
Wilson’s Works, 335, note. See Sec. 206.
4 Kallenbach V. Dickinson, 100 Ill.
427.
51 Wash. Real Prop. 64; Minor’s
Inst. 67, 81. “It is insisted that Our
250 THE SOURCES AND SYSTEMS OF L.A.W. [š 206.
SEC. 206. The National Common Law.—In considering the
existence of a common law of the nation, sufficient has been
said to indicate that by natural growth a common law consist-
ing of customs and usages must necessarily develop;' but the
Student and the lawyer inquire how far the common law in
the narrower sense has become adopted, if at all, into the fed-
eral system, and becomes operative in the federal courts.
The question presents itself in two phases:
Jºrst, as a source of jurisdiction. In the first case, when the
question arose, there was a sharp conflict of opinion. In that
case it was sought to punish the defendant criminally as to a
matter not made a crime by any act of congress.
The judges were divided on the question of jurisdiction, but
it seems that the court adjudged a punishment.”
It is now well settled, however, that the federal courts have
no jurisdiction of subjects of litigation except as conferred by
the constitution or the law.”
The second phase in which questions as to the common law
of the United States arise is as to whether rights are to be
affected and adjudged according to the principles of the com-
mon law, irrespective of or contrary to the decisions of the state
courts; and it would seem that even in cases which do not fall
strictly within the domain of maritime and commercial law,
the federal courts may and do resort to and apply the com-
mon law of England as such, even though their view of what
that law is differs from the decisions of the state courts.”
ancestors, when they migrated to
this country, brought with them the
English common law as a part of
their heritage. That this was the
case, to a limited extent, is admitted.
No one will contend that the com-
mon law, as it existed in England,
has ever been in force in all its pro-
visions in any state in this Union.
It was adopted so far as its princi-
ples were suited to the condition of
the colonies; and from this circum-
stance we see what is common law
in one state is not so considered in
another. The judicial decisions, the
usages and customs Of the respective
states, must determine how far the
common law has been introduced
and sanctioned in each.” Wheaton
et al. v. Peters et al., 8 Pet. 659.
1 Smith v. Alabama, 124 U. S. 478.
2 United States v. Worrall, 2 Dall.
384; Cooley's Const. Lim., pp. 30, 526.
3 See In re Burrus, 136 U. S. 586,
and note on the case, Id. 597–605.
4 In a case involving the doctrine
of fellow-servants as to a rule created
by the English case of Priestly v.
Fowler in 1837, 3 Mees. & W. 1; B. &
O. Ry. Co. v. Baugh, 149 U. S. 367.
This is a very interesting case upon
what subjects the court considers of
general or local jurisprudence. The
court says: “In Hough v. Railway
Co., 100 U. S. 213, 226, was presented
the liability of a company to its Serv-
§ 207.] THE sources AND systEMs of LAw. 251
It is not the intention to here discuss the question as to how
far the national courts will follow the state courts as to what
the law of a state is, but the discussion here will be limited to
the common law of the nation.
SEC. 207. National Common Law —Where the Question Does
Not Involve a State Law.—In the case of Murray's Zessee v.
Zoboken Zand and Improvement Co., the process in question by
which the plaintiff’s title was divested was a warrant issued
by federal officers in pursuance to federal law, and involved no
question of state law or jurisdiction. The question was whether
such process authorized by an act of congress was due process
of law. Mr. Justice Curtis says: “We must look to those set-
tled usages and modes of proceeding existing in the common
law and statute law of England before the emigration of our
ancestors, and which are shown not to have been unsuited to
their civil and political condition by having been acted on by
them after the settlement of this country. We apprehend there
has been no period, since the establishment of the English mon-
archy, when there has not been, by the law of the land, a sum-
mary method for the recovery of debts due to the crown, and
especially those due from receivers of the revenues. It is diffi-
cult, at this day, to trace with precision all of the proceedings
had for these purposes in the earliest ages of the common law.
ant for injuries caused by negligence,
and Mr. Justice Harlan thus ex-
pressed the views of the entire court:
‘Our attention has been called to
two cases determined in the Supreme
court of Texas, and which, it is urged,
sustain the principles announced in
the court below. After a careful
consideration of those cases, we are
of the opinion that they do not nec-
essarily conflict with the conclusions
we have reached. Be this as it may,
the question before us, in the absence
of statutory regulations by the state
in which the cause of action arose,
depend on principles of general law,
and in their determination we are
not required to follow the decisions
of the state courts.” The court,
however, wipes away all doubt on
the matter of what law in the fol-
lowing language: “But passing be-
yond the matter of authorities, the
question is essentially one of general
law. It does not depend on any stat-
ute; it does not spring from any gen-
eral usage or custom; there is in it
no rule of property, but it rests on
those considerations of right and jus-
tice which have been gathered into
the great body of the rules and prin-
ciples known as the ‘common law.”
There is no question as to the power
of the states to legislate and change
the rules of the common law in this
respect as in others; but, in the ab-
sence of Such legislation, the ques-
tion is one determinable only by the
general principles of law. Further
than that, it is a question in which
the nation as a whole is interested.”
B. & O. R. R. Co. v. Baugh, 149 U. S.
338. See Methorn V. S. I. T. Co., 66
Fed. Rep. 113.
252 THE SOURCES AND SYSTEMS OF LAW. [š 208.
That they were summary and severe, and had been used for
purposes of oppression, is inferable from the fact that one chap-
ter of Magna Charta treats of their restraint. It declares: “We
or our bailiffs shall not seize any land or rent for any debt as
long as the present goods and chattels of the debtor do suffice
to pay the debt, and the debtor himself be ready to satisfy
therefor. Neither shall the pledges of the debtor be distrained
as long as the principal debtor is sufficient for the payment of
the debt, and if the principal debtor failin payment of the debt,
having nothing where with to pay, or will not pay where he is
able, the pledges shall answerfor the debt. And if they will, they
shall have the lands and rents of the debtor until they be sat-
isfied of the debt which they before paid for him, except that
the principal debtor can show himself to be acquitted against
the said sureties.”
“By the common law the body, lands and goods of the king's
debtor were liable to be levied on to obtain payment. In con-
formity with the above provision of Magna Charta, a condi-
tional writ was framed, commanding the sheriff to inquire of
the goods and chattels of the debtor, and, if they were insuffi-
cient, then to extend on the lands. 3 Co. 12b; Com. Dig., Debt,
G. 2; 2 Inst. 19. But it is said that since the statute 33 Hen.
VIII., chapter 39, the practice has been to issue the writ in an
absolute form, without requiring any previous inquisition as to
the goods. Gilbert's Exch. 127.”
SEC. 208. Constitutional Interpretations by the Common Law.
Mr. Justice Matthews, in Smith v. Alabama, says: “There is,
however, one clear exception to the statement that there is no
national common law. The interpretation of the constitution
of the United States is necessarily influenced by the fact that
its provisions are framed in the language of the English law,
and are to be read in the light of its history. The code of con-
stitutional and statutory construction which, therefore, is gradu-
ally formed by the judgments of this court, in the application
of the constitution and the laws and treaties made in pursuance
thereof, has for its basis so much of the common law as may
be implied in the subject, and constitutes a common law rest-
ing on national authority. Moore v. United States, 91 U. S. 270.”
1 Murray's Lessee v. Hoboken L. & 2 Smith v. Alabama, 124 U. S. 478.
Imp. Co., 18 How. 227.
§§ 209, 210.] THE SOURCES AND SYSTEMS OF Law. • * 253
SEC. 209. Judge-Made Law.— Very frequently the expres-
sion “judge-made law'” is used in condemnation of all utter-
ances from the bench recognizing and applying rules of law
which have never before been announced in the jurisdiction
within which the court is sitting.
Sufficient has been said in reference to the common law and
the law merchant to indicate that there is a field of judicial
reasoning and a function of the judiciary to give sanction in
specific cases to the rules of reason and universal customs which
obtain among men.
In that sense, and within the limits indicated, judge-made
law is not only justifiable, but it is the imperative duty of the
court to announce it.
An eminent member of the New York bar very truly says:
“Especially is this so under our Anglo-American system of com-
mon law. The law is what the court of last resort declares it
to be. What the court declares the law to be is frequently de-
termined by the reasoning of counsel. This is particularly the
case where a novel question is presented—what we call a case
of ‘first impression.’” He says: “Of course the legislature does
exercise its law-making powers from time to time, but gener-
ally in a way to make us thankful that it does not exercise
these powers more frequently.”" tº
Most of the judicial utterances in the domain of the common
law, embracing the law merchant, maritime and admiralty law
and equity, would fall within the condemnation of judge-made
law were there no distinction made between what is properly
termed judge-made law and the application of the rules of rea-
son and justice to cases which must continually be submitted
to the courts for their decision. -
SEC. 210. Improper Judicial Legislation.—When by this pro-
cess of judicial reasoning rules of conduct have been Once thor-
oughly established in the jurisprudence of a state or a nation,
the function of the judiciary is performed, and these rules
become a part of the law of the land.
Another case, arising after such rules were so established, is
not a new case or a case of novel impression. Especially is
this the case where the question involved is a question of prop-
erty rights or a question of general importance, like a question
1 Address of Hon. Wm. L. Hornblower.
254 * THE SOURCES AND SYSTEMS OF LAW. [$ 211.
of commercial law, rules of damages, liabilities of master and
servant, liabilities of carriers, and the like. .
The true rule has frequently been announced. Thus, Judge
Cooley says: “When a rule has once been deliberately adopted
and declared, it ought not to be disturbed unless by a court of
appeal or review, and never by the same court, unless for very
urgent reasons and upon a clear manifestation of error; and
if the practice were otherwise, it would be leaving us in a per-
plexing uncertainty as to the law.” “A precedent flatly un-
reasonable and unjust may be followed if it has been for a long
period acquiesced in, or if it has become a rule of property, so
that titles have been acquired in reliance upon it, and wested
rights will be disturbed by overruling it. In such a case it will
be proper to leave the correction of the error to the legislature,
which can so shape its action as to make it prospective only,
and thus prevent the injurious consequences that must follow
from judicially declaring the previous decision unfounded.”
SEC. 211. Illustrations.— Priestly v. Fowler.” In 1837 the
Friglish court deduced the rule, based upon public policy, that
where fellow-servants were habitually working together, there
should be no recovery for an injury by one servant to the other,
when the proximate cause of the injury was the negligence of
the fellow-servant. In this manner originated the fellow-serv-
ant doctrine, with its many refinements and exceptions.
When the court was called upon to hear and determine this
case they had no announced rule to guide them, and in that case
they very properly formulated the rule which seemed most rea-
sonable and just.
IHad a case arisen soon afterwards, the court might have been
free to hear arguments questioning the justness of the rule, and
might very properly have reversed their decision, without being
charged with offensive judicial legislation; but after a uniform
course of applying the rule for many years, the more proper
1 1 Cooley's Blk. 69, note 4, citing Pratt v. Brown, 3 Wis. 603; Day v
1 Kent, 475. See Nelson v. Allen, 1 Munson, 14 Ohio St. 488; Taylor v.
Werg. 376; Emerson v. Atwater, 7 French, 19 Vt. 49; Bellows v. Par-
Mich. 12; Sparrow v. Kingman, 1 sons, 13 N. H. 256; Hannel v. Smith,
N. Y. 260; Palmer v. Lawrence, 5 15 Ohio, 134; Sparrow v. Kingman, 1
N. Y. 389; Boon v. Bowers, 30 Miss. N. Y. 260; Ram on Legal Judgment,
246. ch. 14; 7 Robinson’s Practice, 1 et Seq,
2 Emerson v. Atwater, 7 Mich. 12; 33 Mees. & W. 1.
§ 211.] THE SOURCES AND SYSTEMS OF LAW. 255.
course would be to recommend the legislature to change the
rule. t
The Comparative Degrees of Wegligence Rule in Illinois.-
In the celebrated case of Coggs v. Bernard, which was a case in-
Volving the law of bailments, Lord Holt had recourse to the
Roman law in his reasoning upon the subject of negligence,
and in that case he formulated the degrees of negligence, slight,
ordinary, and gross. From this decision, in connection with
reason and logic, there grew up a practice of comparing the
negligence of the plaintiff with that of the defendant, and if
plaintiff's negligence was slight as compared with the negli-
gence of the defendant, which was gross, then the plaintiff
might recover, notwithstanding his own negligence contributed
to his injury.
The justness of the rule was frequently doubted and its ap-
plication denied in some jurisdictions, as we will have occasion
to fully notice in the proper place,” being here concerned only
in the use of this subject as an illustration of what is termed
improper judicial legislation. ..
The rule of comparative negligence was adopted for the first
time in Illinois many years ago,” and the rule was very fre-
Quently applied during a long series of years,” and became the
settled rule of law. -
Notwithstanding it is within the province of the courts of
Illinois to recommend legislation to the general assembly, and
indicate wherein the law might be improved by change, the
court of Illinois finally announced its intention to depart from
this long established rule.”
The rule involved in these Illinois cases is not a rule of prop-
erty, neither was the right which was established in one case
necessarily the basis for a claim of a right arising ea delioto in
another instance, and so these cases may be claimed not to fall
within the condemnation before spoken of; but the rule was
Quite as much a rule of general and universal interest as that
1 Lord Raym. 909; 1 Sm. L. C. 369. 46 Ill. 75; C., B. & Q. Ry. Co. v. John-
2See Index, title Negligence. son, 103 Ill. 512; W. S. Elev. Ry. Co. v.
& G. & C. U. Ry. Co. v. Jacobs, 20 Stickney, 150 Ill. 362.
Ill. 478. 5 City of Lanark v. Dougherty, 153
4 C., B. & Q. Ry. Co. v. Hazzard, 26 Ill. 163. -
Ill, 373; C. & A. R. R. v. Gretzner,
256 THE SOURCES AND SYSTEMS OF LAW. [$ 212
spoken of in B. dº O. R. R. Co. v. Baugh, above referred to,
If important rules, long established and universally applied,
are to be changed and departed from according to the notion
of policy and justice which may obtain among the members of
the bench at a particular time, there can be no stability in the
law. A much better method would be for the judges, in such
cases, to recommend that the legislature change the rule, in-
stead of indulging in what may justly be termed judicial leg-
islation. A rule thus announced differs in no way from the
praetor's edict in the Roman law.
Chancery Courts’ Great Development of Zaw.—Equity has
been from the earliest times a part of the common law, and
the separation of the courts into two branches, i. e., law and
chancery, does not affect the question. It will be necessary in
another place to examine the nature of equity and the rise of
chancery, and it will suffice here merely to mention that the
chancery courts have been constantly creating a formal system
of law in the manner above pointed out.' -
SEC. 212. Martial Law.— Another system of law which may
prevail over the whole extent of country embraced within the
national domain, or which may by proper authority be ex-
tended over only a portion of that domain, is what is called
martial law.
Martial law displaces the civil law and places the territory
embraced within the declaration of martial law under the rules
of military government, which, in effect, amount to but little
less than the arbitrary rules of the officers administering the
government.
Martial law must, as a matter of course, be a last extremity.
It should be the dernier resort of the government to protect and
preserve the constitution.
Instances of its application in the United States have arisen,
and a careful investigation of the litigated and adjudicated
cases which have grown out of the exercise of the power of
declaring martial law shows the dangerous nature of its appli-
cation; and it must be admitted that during the time of our
recent civil war, citizens were subjected to a deprivation of
their liberty and unwarranted injustice and outrage under the
guise of martial law. This, however, only illustrates that there
*See & Wilson's works, 184-86.
§§ 213, 214.] THE SOURCES AND SYSTEMS OF LAw. 257
is a proper and improper use of all and any of the instruments
of government." -
SEC. 213. Military Law differs essentially from martial law,
with which the student is apt to confuse it. Military law con-
sists of the rules and articles of war, statutory provisions and
customs which govern those engaged in the military and naval
service. It obtains equally in time of peace and time of war.”
Courts-martial are held by virtue of military law, and, within
their jurisdiction, the findings and judgments of such courts
are a part of the law of the land, and are not subject to review
in civil courts.”
Such rules and regulations governing the army and the navy,
and all the members and officers thereof, are a part of our juris-
prudence, and as such a part of the government of the land.”
SEC. 214. Beclesiastical and Canon Law."—While the canon
law is no part of American municipal law, it may be affirmed
that in the same way that the customs of merchants were recog-
nized and respected by the civil courts of England, so the cus-
toms and rules of the church will govern in matters purely
spiritual;" while as to civil matters and property rights growing
out of membership of the church, the civil courts maintain
jurisdiction to protect and preserve the rights of members."
These systems are not generally regarded as suitable to this
country, and for that reason are not held to be a part of the
common law adopted by the states.”
1 Ex parte Milligan, 4 Wall. 2–143.
See also Luther v. Borden, 7 How. 1,
and notes. Johnson v. Jones, 44 Ill.
142, is one of the most instructive
cases upon this subject. In that case
Johnson, a resident of a district not
engaged in the rebellion, and which
had not been declared to be sub-
jected to martial law, was arrested,
transported from his home to various
prisons, denied the right of trial or
hearing, and given no means of com-
munication with home or friends. Fi-
nally, after being released without ar-
raignment or hearing, he vindicated
his right in the civil courts of justice.
The case is one not widely known,
17
but is extremely interesting and in-
structive on the subject of martial
law.
2 Lawyers' Co-operative Edition of
U. S. Sup. Ct. Rep.; Luther v. Borden,
7 How. 1, and notes.
3 Johnson v. Sayre, 158 U. S. 109.
4 Closson v. Armes (Ct. Of Appeal,
Dist. of Columbia), 53 Alb. Law Jour.
40.
5 See Middleton v. Crofts, 2 Atk. 650.
6 Watson v. Jones, 3 Wall. 679.
7 Chase v. Cheney, 58 Ill. 509; 11
Am. Rep. 95; Note by Hon. Melville
M. Fuller in 10 Am. Law Reg. 314.
8 Jones v. Jones, 90 Hun, 414; Burtes
v. Burtes, Hopk. Ch. 557.
CHAPTER XI.
TELE NATIONAL GOVERNMENT.
“In Europe the sovereignty is generally ascribed to the prince; here,
it rests with the people; there, the sovereign actually administers the
government; here, never in a single instance. Our governors are the
agents of the people, and at the most stand in the same relation to their
sovereign in which regents in Europe stand to their sovereigns.
Their
princes have personal powers, dignities and pre-eminences, Our rulers
have none but official; nor do they partake in the sovereignty otherwise,
or in any other capacity, than as private citizens.”— Jay, Chief Justice,
2 Dall, 472.
SEC. 215. The Creation of Government.—We have heretofore
noticed the distinction between the people and the government,
and that society may antedate indefinitely any established, rec-
ognized rules governing the political affairs, or what we call a
constitution.
Government, or the government, is the term by which we
designate the aggregate agencies or officers in whose hands the
administration of public affairs is intrusted."
In many, if not,
1 “The sovereignty or supreme
power in every state resides ulti-
mately in the body of the people.
Blackstone supposes the jura summi
imperii, or the right of sovereignty,
to reside in those hands in which the
exercise of the power of making
laws is placed. Our simple and more
reasonable idea is, that the govern-
ment is a mere agency established
by the people for the exercise of
those powers which reside in them.
The powers of government are not,
in strictness, granted, but delegated
powers. As all delegated powers are,
they are trust powers, and may be
revoked. It results that no portion of
sovereignty resides in government.
A man makes no grant of his estate
when he constitutes an attorney to
manage it. The sovereignty — the
..jura swimmi imperii — resides in the
body of the state or nation by whose
consent, expressed or implied, a form
of government was at one time estab-
lished as the organ to make known:
its sovereign will. This sovereignty
is indivisible, and can be lost only in
one way — by a voluntary or forced
subjection to, or merger with, some
other state or people.” “The con-
stitutions of our American republics
have always been written. The
charters which prescribe the forms:
of government were so. Those
adopted by the several states at the
period of the Revolution were all so.
[This is an error.— Ed..] They not
only organized the several depart-
ments, the legislative, executive,
and judicial,— but by various bills
of rights, as well as express restric-
tions, prescribed limitations to the
power of the government.” Shars-
wood's Blk. Com., vol. 1, p. *49, note:
12. - -
§ 215.] THE NATIONAL GOVERNMENT. 259
most, of the nations, the political Organization of society is a
slow growth, and evidence of many of the most important and
fundamental rules rests only in tradition or immemorial cus-
tom; but however the organization is brought about, the result
is the same, although not the same in its outward manifesta-
tion or form.
Government is organized and established by a constitution.
Society is not formed in the same way. Society establishes the
constitution; it creates the government."
The form and relation to each other of the parts of a govern-
ment, and the rules which regulate the various administrative
officers, is called a constitution.
Constitutions come into existence by the mutual convention
or agreement of the people. The legislation conducted by con-
stitutional conventions is called political legislation, to distin-
guish it from the Ordinary legislation of the general assemblies
of the states or congress of the United States.
A constitution is a law differing from other parts of the mu-
nicipal law only in its objects and the manner of its adoption.
Those fundamental regulations which determine the manner
in which public authority is to be executed, however, consti-
tute the constitution of the state or nation.”
1 “Organization implies a relation
on the part of each constituent
group (or component element of the
community) with every other group
and with the whole, as an integral
body. This relation is of such a
nature that each group contributes
to the efficiency of every other group
and of the whole; and the whole,
strengthened by such general con-
tribution, increases the efficiency of
every separate group. Government
implies the conscious superintend-
ence of the fortunes of the commu-
nity, both present and future, and
involves the manipulation of the
physical strength latent in all parts
of the community, for the purposes
both of controlling recalcitrant
members of the community and of
protecting the commnity from as-
sailants from without. The main
In it is seen the
instrumentality by which govern-
Iment operates is law, or bodies of
general rules declaring the acts
which members of the community
are to do and not to do in order to
facilitate the accomplishment of the
general purposes for which the gov-
ernment exists.” Amos' Sci. of Law,
p. 122.
* “By the constitution of a com-
monwealth is meant primarily its
make-up as a political Organism, that
special adjustment of instrumentali-
ties, powers and functions by which
its form and Operation are deter-
mined. 3.
“This is a constitution considered
as the Outcome of social and polit-
ical forces in history, as an organic
growth, Or, as I shall sometimes de-
scribe it, as a fact. {
“Besides this, the term ‘consti-
$26) THE NATIONAL GOVERNMENT. [$ 216.
manner in which the nation acts as a body politic; what pro-
vision the people make for the administration of the law; the
rights and duties of magistrates.
Wattel says: “This constitution is in fact nothing more than
the establishment of the order in which a nation proposes to
labor in common for obtaining those advantages with a view
to which the political society was established.”"
SEC. 216. What a Constitution Embraces.—The existence of
written constitutions which obtrude themselves upon the view
of the students of our legal system tends to engender the idea
that the constitution of a state or nation consists entirely of this
written act which emanates from the people through a consti-
tutional convention—that it is the whole of the constitution.
This view should not be allowed to exclude an important
portion of the constitution of a people, which, however silently
it may transpire, or how infrequently it may obtrude itself
upon the public view, is nevertheless an essential part of the
constitution and the law,”—for example, the English constitu-
tion. While there are many purely constitutional documents
tution’ has a secondary meaning,
which is perhaps more common than
the one given, involving equally the
conception of a system of political
instrumentalities, powers and func-
tions, specially adjusted for the pur-
poses of government, but conceived
of not as an Organic growth, but as
a systematic description of such a
growth, in the shape of formulae, ad-
dressed to the understanding. In
other words, a constitution in a sec-
ondary sense is the result of an at-
tempt to represent in technical lan-
guage some particular constitution
existing as an Organic growth. This
is a constitution considered as an in-
strument of evidence. The constitu-
tion of the United States is twofold—
written and unwritten, the consti-
tution of the people, and the consti-
tution of the government.
“The written constitution is simply
a law ordained by the nation or peo-
ple instituting and organizing the
government.
“The unwritten constitution, is the
real or actual constitution of the peo-
ple as a state or sovereign commu-
nity, and constituting them such or
such a state. It is providential; not
made by the nation, but born with
it. The written constitution is made
and ordained by the sovereign power,
and presupposes that power as al-
ready existing and constituted.” The
American Republic, p. 218; Jameson
on Const. Conv., p. 67.
1 Vat., Law of Nat., ch. 3, Sec. 27.
2 Judge Cooley says: “In a much
qualified and very imperfect sense
every state may be said to possess a
constitution; that is to say, Some
leading principle has prevailed in
the administration of its government
until it has become an understood
part of its system, to which obedi-
ence is expected and habitually
yielded.” 1 Bouv. Inst. 9; Duer,
Const. Juris. 26. “By the constitu-
tion of a state, I mean the body of
those written or unwritten funda-
§ 217.] THE NATIONAL GOVERNMENT. 261.
affecting and regulating the affairs of the English nation, a
large part of the constitution of England consists in imme-
morial customs or general usages of the British people.
Nor are we wanting in examples of the same kind in the
TInited States, even after the establishment of the present con-
stitution. “The constitution of Connecticut,” says Justice Pat-
erson (speaking in 1798), “is made up of usages, and it appears
that its legislatures have from the beginning exercised the
power of granting new trials.” Again he says: “For if the
power thus exercised comes more properly within the descrip-
tion of a judicial than a legislative power, and if by usage or
the constitution, which in Connecticut are synonymous terms,
the legislature of that state acted in both capacities, then, in
the case now before us, it would be fair to consider the award-
ing of a new trial as an act emanating from the judiciary side
of the department.”" -
Mr. Justice Iredell, in the same case, says: “From the best
information to be collected relative to the constitution of Con-
necticut, it appears that the legislature of that state has been
in the uniform, uninterrupted habit of exercising a general
superintending power over its courts of law by granting new
trials.”2 - -
SEC. 217. The Delegation of Official Power.—The only means
by which power can be delegated from the people to officers or
agencies must be through the means of their anciently estab-
lished customs or in their written constitutions.
Thus, Mr. Justice Paterson says, in a very early case: “What
is a constitution? It is the form of government delineated by
the mighty hand of the people, in which certain first principles
of fundamental laws are established. The constitution is cer-
tain and fixed; it contains the permanent will of the people,
and is the Supreme law of the land; it is paramount to the
power of the legislature, and can be revoked or altered only by
the authority that made it. The life-giving principle and the
death-doing stroke must proceed from the same hand. What
mental laws which regulate the most and Nations, quoted in Cooley's
important rights of the higher mag- Const. Lim., p. 4.
istrates and the most essential privi- 1 Calder v. Bull, 3 Dall, 386.
leges of the subjects.” Mackintosh 2 Ibid.
On the Study of the Law of Nature
262 TEIE NATIONAL GOVERNMENT. [šš 218, 219.
are legislatures? Creatures of the constitution; they owe their
existence to the constitution; they derive their powers from
the constitution. It is their commission; and therefore all their
acts must be conformable to it, or else they will be void. The
constitution is the work or the will of the people themselves in
their original, sovereign and unlimited capacity. Law is the
work or will of the legislature in their derivative and subordi-
nate capacity. The one is the work of the creator, and the
other the work of the creature. The constitution fixes limits
to the exercise of legislative authority, and prescribes the orbit
within which it must move. In short, gentlemen, the constitu-
tion is the sun of the political system, around which all legisla-
tive, executive and judicial bodies must revolve.”"
SEC. 218. Constitution Does Not Create Rights of the People.
The constitution is not the source of the liberty of the people,
although it constitutes the measure and safeguard of it.” It
however constitutes the only limitation upon the power of the
people and the method of exercising it,” and is the only war-
rant of attorney or authority by which any person can justify
the exercise of governmental power.” - :
The Government Personified.— In the popular speech, govern-
ment, or the government, is personified. The habit is to speak
of the government as having done this or accomplished that,
and in a certain way.it may be said that the government acts,
especially should a case occur where the co-operation of all de-
partments is invoked. This, however, can seldom be the case.
Ordinarily speaking, the government acts by or through one
department at a time. - -
SEC. 219. Personality of Magistrates.—The habit of thus
personifying the government would correspond with the actual
fact in a nation where the sovereignty actually resided in the
prince, but with us the only outward manifestation of govern-
ment is through the acts and declarations of magistrates.
1 Van Horne v. Dorrance, 2 Dall. tution.” Story, J., in Martin v. Hun.
308. ter's Lessee, 1 Wheat. 326. Again he
2 People v. Hurlbut, 24 Mich. 87. says: “The powers actually given
3 In re Duncan, 139 U. S. 449. must be such as are eacpressly given,
4 “The government of the United or given by necessary implication.”
States can claim no powers which Id. See Ex parte Yarborough, 110
are not granted to it by the consti- U. S. 651–658.
$ 220.] THE NATIONAL GOVERNMENT. 263
Throughout the course of the preceding portions of the
Work magistrates have been spoken of as persons. The lay
reader or the novice will give ready assent to the proposition
that all public officers are persons; but in many, if not most,
instances, this assent will be based upon the conception of the
natural capacity of the incumbent rather than an appreciation
of the legal fact that the officer, in contemplation of law, is
What we term an artificial person.
One who had perused and become familiar with the first
book of Blackstone's Commentaries would be led naturally to
inquire whether these magistrates were then regarded as arti-
ficial persons, bodies politic or corporations, for the reason that
Blackstone treats all artificial persons as corporations. He treats
the king as a great corporation sole, and treats parliament, com-
posed of the king, lords and commons, as the great body politic
Or corporate of the nation.
It requires but a little reflection to perceive that the magis-
tracy which is inherent in a person or body differs from the
magistracy which is delegated, and that there is a difference
between the idea of public office in the United States and the
conception of the same magistrates, under the former concep-
tion at least of magistracy in England, as expressed by Black-
Stone in his Commentaries.
SEC. 220. Creation of Magistrates is Political Legislation.—
Those authors who advocate the distribution of the corpus
juris into two great bodies, the one designated public law and
the other private law, treat the relation of magistrate and peo-
ple as falling under this distinct branch of the law designated
public. .
For reasons which have heretofore been given, the form of
this treatise is not dominated by any such classification or di-
vision. *
Of this distinction Austin says: “Briefly stated, the distinc-
tion between public and private law is this: The former re-
gards persons as bearing political characters. The latter regards
persons who have no political characters, and persons also who
have them as bearing different characters. In a word, public
law is the law of political status; and, instead of standing op-
posed to the body of the law, is a branch of one of its depart-
264. TEIE NATIONAL GOVERNMENT. [$221.
ments, namely, of the law of persons, in which light it was
justly considered by Hale, and after Hale, by Blackstone.”
In explaining the legal significance of the word “person’ it
appeared that one man in regal contemplation might be in-
vested by the law, or by virtue of his own acts in conjunction
with the law, with several different capacities or aspects, and
perform several functions differing in their character,” and in
that connection was invoked the expression taken from the
corpus juris, “unus homo sustinet plures personas.”
SEC. 221. Magistracy Distinguished from Corporate Capac-
ity.—English jurists generally agree in treating magistrates
with the law of persons, but they also seem to be universally
agreed upon distinguishing between the body corporate and
politic, even though it be a single individual exercising public
function or office, and a corporation, strictly so called. Thus,
Sir Frederick Pollock says: “The greatest of artificial persons,
politically speaking, is the state. But it depends on the legal
institutions and forms of every commonwealth whether and
how far the state or its titular head is officially treated as an
artificial person. In England we now say the crown is a cor-
poration; it was certainly not so when the king's peace died
with him, and “every man that could forthwith robbed an-
Other.”””
The peculiar thing about the treatment of magistrates by Sir
William Blackstone is in classifying them as natural persons,
thus losing sight of the idea which should pervade and be made
prominent in every treatment of the law, namely, the deriva-
tive character of the magistracy as contrasted with the per-
sonal right which men have in those things which are the sub-
ject of ownership.
Dlackstone's view was not altogether unjustifiable according
to his views of sovereignty in English law, and resulted from the
legal motion which obtained in English jurisprudence, that in a
great many instances magistracy was a personal right vested
in a natural person; * but the arrangement of the law, as indi-
cated by Blackstone's analysis, could only result from losing
11 Austin’s Jur. 416. the sovereignty and prerogative of
2 Amte, Sec. 85. - the king. Ashby v. White, Ld. Ray.
3 First Book Jur. 113. 938.
4 Notably the right of suffrage and
§ 221.] THE NATION AT GOVERNMENT. 265.
sight of the distinction between the individual man and the arti-
ficial attribute (personam) with which the law clothes him.
Chief among these artificial capacities conferred by law is the
capacity or duty of magistracy, which we, in American law,
commonly speak of as public officers."
Official capacity is always, in our law at least, artificial.
The office is always created by the people for their conven-
ience in the administration of public affairs and for the pro-
tection of private rights. The powers of officers are always
derivative, and partake of the nature of an agency, trust Or
employment.” The personality which appears in the exercise
of official power is always artificial; that is, it exists apart
from the individual and continues in perpetual succession.”
The similarity between the public office and a corporation
is much closer than the student of our law would be led to be-
1 See Mechem; Pub. Off., § 1.
2 Mechem, Pub. Off., § 4.
3 There was no uncertainty in the
civil-law treatment of the matter.
The idea is very concisely explained
by Ortolon, from whom we have be-
fore quoted: “The people (populus),
the republic (republica), the emperor,
not in an individual but in a pub-
lic character, were abstract persons,
which only existed by the creation
of the law, but which might, as much
as an individual, be the active or
passive subject of the law. So, also,
were the magistrates, the municipia,
the curioc of the different towns, the
acrarium or exchequer of the people,
to which was afterwards added that
of the prince, the fiscus, which ended
by absorbing the Oerariwm, the hoºre-
ditas jacens, that is, the vacant in-
heritance before it had been entered
on by the heir, and which, among
the Romans up to the time when it
was realized, sustained the persona
of the deceased (personan defuncti
sustinet); the peculium, which, ac-
cording to the expression of Papirius
Fronto, resembled a man; the tem-
ples and the different colleges of
pagan pontiffs; the churches and
various orders of the Christian clergy
which supplanted them; the con-
vents, the hospitals and the religious.
endowments; in a word, all the com-
munities, universities, colleges, cor-
porations (wrviversitas, corpus, col-
legium) formed so many abstract,
personae, whose existence was purely
legal, but who, like physical persons,
Imight be the active or passive sub-
jects of rights.
“The foundation of universities,
colleges and corporations in Roman
law was strictly to the jus publicum;
no such body could be formed or dis-
solved at the mere will of the parties.
constituting it. No corporation could
of its own free will establish itself
and acquire a persona in the state.
Every corporation had to be specially
authorized by a lea, by a sematus-
consultwm, or by an imperial consti-
tution. They required, besides, the
conjoint action of three persons at
least for their institution, but not
for their continuation. The mem-
bers were called sodales.
“The legal status of the fiscus was
a subject to which the jurists de-
voted much attention.” Ortolon's
History of R. L. 605–6. -
266 THE NATIONAL GOVERNMENT. [š 222.
lieve by a perusal of any of the elementary works obtainable."
Public officers or magistracy and corporations are almost never
treated in such works in the same connection, or in such a way
as to contrast their dissimilarities and to show their resem-
blances.”
SEC. 222. Attributes of Corporations.— The first attribute of
a corporation is the attribute of artificial personality, whereby
a legal entity is given to a body of men. The second capacity,
or attribute, is that of perpetual succession, by which, notwith-
standing the change in individuals, the corporation itself con-
tinues its existence, and all of the rights are held in perpetual
succession, irrespective of the names or individuals who may
compose the corporation.
Illustrations.—Thus, in an early case in Massachusetts, the
court held that when a minister of a town or parish is seized
of lands in the right of the town, which is the case in all par-
sonage lands granted for use of the ministry, the minister for
this purpose is a sole corporation, and holds the same to him-
self and his successors.” -
1 Walker treats them as public per- and he notices that a supervisor of a
sons, but does not indicate whether town is sub modo a sole corporation.
as natural or artificial. Page 59. In England this character has been
* Blackstone treats the king as a ascribed to the king, ‘to prevent, in
body politic, and also the parliament, general, the possibility of an inter-
but the subject of corporations, as regnum, or vacancy of the throne,
such, is not mentioned by him until and to preserve the possession of the
he takes it up under the title “Pri- crown entire. On a similar concep-
vate Corporations.” The whole of tion this quality has been ascribed
what we call Public Corporations is to the governor of a state. But it is
treated by him under the title of not perceived why the same quality
“Private Persons Standing in Public might mot, upon equal grounds, be
Relations.” ascribed to any public official.” 1
Mr. Thompson, in his very compre- Thompson’s Com., p. 8. In this he is
hensive commentaries on corpora- quite correct, and the distinction
tions, however, notices the very close between a pure corporation, public
analogy between public officers and or private, must be based on other
corporations sole. He says: “The con- grounds than the idea of perpetual
ception of a corporation composed succession.
of a single person seems to be pass- 3 “By the provincial statute of 28
ing out of the American law. A min- Geo. II., c. 9, the ministers of the sev-
ister seised of parsonage lands in the eral Protestant churches were made
right of the parish has been regarded corporations, capable of taking in suc-
as a Corporation Sole for the purpose cession any parsonage lands granted
of holding such lands so that his title to the minister and his successors, or
should pass to his successors in office; to the use of the ministry. And no
§ 222.] THE NATIONAL GOVERNMENT. 267
In case of a vacancy in office, the town or parish is entitled
to custody of the same, and for that purpose may enter and
take the profits. The minister by law holds to him and his
successor all the estates and rights which he holds as minister."
The Supreme court of New York had occasion to examine
the question in reference to a municipal officer,” and in that
case they distinguished between officers who could not take or
hold in perpetual succession and officers who could so hold, and
in this manner obviated the objection made by Kyd in his
Work on corporations and in Blackstone's Commentaries, that
such persons were not corporations because they did not hold
in succession. In the case under consideration (it was a suit
upon a bond given to one officer by name and sued upon in
the name of his successor), it was contended by the defense
that this could not be allowed. The court says: “It will be
admitted that this action cannot be sustained in the name of
the plaintiff unless the statute has expressly conferred the right,
or the power to sue is incident to the office, on the principle that,
pro tanto, he is endued with a corporate capacity. The former is
not pretended; the latter, I think, is supported by the decisions
of this court.
The Supervisor of a town is elected annually and
alienation made by a minister of any
parsonage lands, holden by succes-
sion, shall be valid any longer than
he shall continue minister; unless,
being a minister of some particular
town, district or precinct, such alien-
ation be made with the consent of
such town, district or precinct; or,
being a minister of some Episcopal
church, the alienation be made with
the consent of the vestry. ,
“The provisions of this statute, On
this subject, are re-enacted by the
statute of February 20, 1786, on which
rests the right of ministers to hold
parsonage lands in Succession as sole
Corporations, and also the restriction
of the alienation of their parsonages.
“Ministers being thus made sole
Corporations, their rights and reme-
dies are clearly defined by the com-
mon law. They stand on the same
foundation, as to their parsonages,
with all other sole corporations hold-
ing lands in Succession at common
law. & .
“The minister holding parsonage
lands in fee-simple holds them in
right of his parish or church, and
therefore, On his resignation, depri-
vation or death, the fee is in abey-
ance until there be a successor.
“During the vacancy the parish or
church have the custody and are en-
titled to the profits of the parsonage.”
Weston v. Hunt, 2 Mass. 500.
1 First Parish v. Dunning, 7 Mass.
445. Compare this with 1 Blackstone,
377. It will be seen that the fact
that the minister did not hold in suc-
cession is the reason why Blackstone
denies to him the quality and ca-
pacity of a Corporation.
2 The Massachusetts case is of an
ecclesiastical municipal officer. There
is no real distinction in principle.
268 THE NATIONAL GOVERNMENT. [š 222.
holds his office until a successor is appointed. He has various
duties to perform as the representative of the town; he has
other duties relating to the county when acting as one of the
board of Supervisors. In Jackson v. Hartwell, 8 Johns. 425,
the court considered the supervisors of a county a corporation
for special purposes and with special powers only, and conse-
quently, in those particulars, having the capacities incident to
a corporation. The same principle applies to the supervisor
of a town in the discharge of the duties of his office. He acts
not in his natural capacity, but in his public official character;
and may be considered a corporation, and having the capacity
of suing and being sued, in right of the Office he holds, so far
as his trust is concerned. . . . . They were considered as
the public agents and trustees of the town in respect to their
poor. It was held that they must necessarily, without express
authority from the legislature, possess a capacity to sue com-
mensurate with their public trusts and duties; that when a
public office is instituted by the legislature, an implied author-
ity is conferred on the officer to bring all suits, as incident to
his office, which the proper and faithful discharge of its duties
require. It was also held that although the statute gives the
right to sue in certain cases, it by no means proves that the
power would not have existed independently of the statute.
Instances of quasi-corporations are stated by Kyd (pp. 9–19)
which have a strong analogy to the present case. In Denton
v. Jackson, 2 Johns. Ch. 325, the chancellor considered that
persons may have corporate powers sub modo, and for certain
specified purposes only; and that the several towns in this
state are legal communities or bodies politic for certain pur-
poses. . . . I am aware that questions, perhaps, of diffi-
culty may arise on many points relating to the extent and
exercise of powers by persons who are only sub modo a corpo-
ration. The remedy is the same as that given to a corporate
body.” I
Savage, C. J., in this case states that the true reason for the
distinction between the case of the bishop of the church and
the chamberlain of the city of London is not the custom from
which the One derives his capacity as a corporation, but from
Jansen v. Ostrander, 1 Cow. (N.Y.) 678.
§ 223.] THE NATIONAL GOVERNMENT. 269
the fact that the former takes obligations in his private capac-
ity and the latter in his corporate capacity."
SEC. 223. The Public Corporation Sole is a Public Officer.—
It will be observed that in most if not all of the cases, all
the instances of corporations sole mentioned, the corporation is
in reality exercising a public function, or at least a quasi-public
function, notably in cases of ecclesiastical office like the bishop,
although it is said that the bishop holds in his private capacity.
In the Massachusetts case above mentioned the church officer
was held not to hold in a private capacity, and consequently to
hold in perpetual succession.
These corporations sole are not obsolete in the United States,
and it will not do to ignore them simply because they are not
frequently met with. -
In Westcott v. Fargo, a case arising in New York, and de-
cided in 1875, a public corporation sole was recognized to exist.”
If there was not some very essential distinction between in-
dividuals exercising the artificial attributes of magistracy and
an individual exercising the franchises of a pure corporation,
there would be no legal distinction between a public magistrate
1 “It is, however, objected on the
part of the defendants that the su-
pervisor, if endued with corporate
powers, is a corporation sole, which
Cannot take goods and chattels in
succession; that they do not on his
death go to the successor, but the
personal representatives; and they
cite Kyd on Corporations, Intro.,
p. 31; Co. Litt. 46b, where it is said:
* If a lease for years be made to a
bishop and his successors, yet his
executors and administrators shall
have it in auter droit; for, regu-
larly, no chattel shall go in succes-
sion, in case of a sole corporation, no
more than, if a lease be made to a
yman and his heirs, it can go to his
heirs.” The same doctrine is laid
down in Fulwood's Case (4 Co. 65),
where, however, the court held a
recognizance good to the chamber-
lain of London and his successors,
upon custom; for he was a corpo-
ration by custom; and the same cus-
tom which created him made him a
Corporation in succession to this
Special purpose; but that a bishop,
parson, etc., can only take an obliga-
tion in their private, and not in their
Corporate, capacity. -
“Corporations sole are of two
kinds: the One when the person has
a Corporate capacity for his own bem-
efit ; the other when he acts as trustee
for the benefit of others. Of the for-
mer kind, Kyd instances the king,
bishops, parsons, etc.; of the other,
the most familiar instance, says the
same author, is the chamberlain of
the city of London, who may take a
recognizance to himself and succes-
sors, in trust for the orphans.” Jan-
sen v. Ostrander, 1 Cow. (N. Y.) 684–
685a. See also Governor v. Allen, 8
Humph. 176.
2 Westcott v. Fargo, 61 N. Y. 542.
See also Boston v. B. & A. Ry. Co.,
128 Mass. 446.
270 TEIE NATIONAL GOVERNMENT. [$224.
and a corporation proper, excepting in the nature of the fran-
chºse and the orbit in which the powers were exercised. One
would be a public corporation and the other private.
SEC. 224. The Real Distinction Between Corporations and
Magistrates.—The real distinction between corporations, prop-
erly so called, and public officers, whether consisting of a single
individual or of an aggregate body, consists in the nature of
the right to possess an artificial capacity, Or, in other words,
there exists in one case a franchise, properly so termed, while
in the other there is a mere agency or trusteeship, in no man-
ner resembling property or a vested right. It is a capacity in
auter droit, as the legal phrase goes."
One of the essential attributes of corporate capacity is the
possession of the franchise, and this franchise belongs to the
person to whom it is given in his own right as a vested prop-
erty right. Thus, we say a corporation is itself a franchise be-
longing to the members of the corporation.
This franchise is obtained by a charter. It can be obtained
in no other way. In America this charter is held to be a con-
tract and the franchise wested property rights.
The nature of this franchise and the distinction between the
franchises which belong to the members and the corporate
franchise of the corporation will be treated under the subject
of corporations. We here merely mention it for the purpose
of distinguishing between and making prominent the distin-
guishing feature between public magistracy and corporate fran-
chises. l
The elective franchise, so called, is quite different in its nature
and is not of the same character with the right of suffrage
under the English law, and the use of the expression need not
confuse the student in the matter of the distinction just drawn.
The reason for the dearth of corporations sole, properly so
termed, is quite obvious. The franchise to be a corporation
is a special privilege, carrying with it certain capacities and
immunities from liability not possessed by other individuals.
There is no legal disability, probably, in the legislature to
invest one person with the same capacity for doing business
which might be conferred upon three; but in the matter of
public policy and utility there exist obvious objections to con-
1 Jansen v. Ostrander, 1 Cow. (N. Y.) 670–678.
§ 224.] THE NATIONAL GOVERNMENT.
271
ferring upon a single individual in his private personal capac-
ity the peculiar privilege of having perpetual succession and
other special franchises."
It might even come within the inhibition of peculiar priv-
ileges to clothe him with a franchise or exemption which
others, his neighbors, were not generally given; * and, if a gen-
eral law were passed which enabled all persons to become cor-
porations in the eye of the law, it would not be any longer a
privilege.
So far as a public officer is concerned, it is a useless form to
designate a public officer a corporation when his title as officer
protects him in the performance of his public acts and agency,
and furnishes him immunity against liability in his private in-
dividual capacity.”
1 Home Ins. Co. v. New York, 134
TJ. S. 594, “By the term ‘corporate
franchise or business,” as here used,
we understand is meant (not refer-
ring to corporations sole, which are
not usually created for commercial
business) the right or privilege given
by the state to two or more persons
of being a corporation, that is, of
doing business in a corporate capac-
ity, and not the privilege or franchise
which, when incorporated, the com-
pany may exercise. The right or
privilege to be a corporation, or to
do business as such body, is one gen-
erally deemed of value to the corpo-
rators or it would not be sought in
such numbers as at present. It is a
right or privilege by which several
individuals may unite themselves
under a common name and act as a
single person, with a succession of
members, without dissolution or sus-
pension of business and with a lim-
ited individual liability.”
2See Cooley, Const. Lim. (6th ed.),
484. -
8 Mississippi v. Johnson, 4 Wall. 475.
CEIAPTER XII.
TARTITION OF THE POWERS OF GOVERNMENT.
SEC. 225. General Principles.—The principles underlying the
distribution of public functions between different bodies did
not originate in the United States, nor is it a modern invention.
Its practical application, however, began in England and
reached its present approximate perfection for the first time in
the United States.
A great fundamental difference between the constitution of
Great Britain and that of the United States renders this separa-
tion, co-ordination and interdependence of the several branches
of government more naturally and easily accomplished in the
United States than in England.
Professor Bryce says: “The British parliament had always
been, was then (time of the American Revolution), and re-
mains now, a sovereign and constituent assembly. It can make
and unmake any and every law, change the form of govern-
ment or the succession to the crown, interfere with the course of
justice, extinguish the most sacred private rights of the citizens.
Between it and the people at large there is no legal distinc-
tion, because the whole plenitude of the people's rights and
powers resides in it, just as if the whole nation were present
within the chamber where it sits. In point of legal theory it
is the nation, being the historical successor of the Folk Moot
of our Teutonic forefathers. Both practically and legally it is
to-day the only and the sufficient depository of the authority
of the nation, and is therefore, within the sphere of law, irre-
sponsible and Omnipotent. -
“In the American system there exists no such body. Not
merely congress alone, but also congress and the president con-
joined, are subject to the constitution, and cannot move a step
Outside the circle which the constitution has drawn around
them. . . . The only power which is ultimately sovereign,
as the British parliament is always and directly sovereign, is
the people of the states, acting in the manner prescribed by the
§ 225.] PARTITION OF THE PowRRs of governNENT. 273
constitution, and capable in that manner of passing any law
whatever in the form of a constitutional amendment.”"
In the United States the people are the only constituent body,
whether this is spoken of the states or of the general govern-
ment. The people are the constituents; the departments of
government are but the agencies in whose hands the exercise
of duties of a certain well-defined character are intrusted.”
Notwithstanding the distinction which is commonly and
justly made between the nature of the federal constitution and
the state constitutions, in that the former is a grant of power,
while the latter are limitations upon the powers of the legislative
departments,” there is in respect to the matter now under con-
sideration no essential difference between the two — the de-
partments of each system are exercising delegated and not
original authority.”
Each department is limited by the very process of separation
1 Bryce's Am. Com. 32. It was at
one time supposed that there was a
law of parliament differing from the
common law, by which the rights
and personal liberties of individuals
might be affected, without any power
in the civil courts to investigate and
protect them. This idea has been dis-
carded. Stockdale v. Hansard, 9 Ad.
& El. 1; Howard v. Gossell, 10 Ad. &
El. 386; 59 E. C. L. 358.
2 Jones v. Perry, 10 Yerg. 59. See
also Hawkins v. Governor, 1 Ark. 570;
Emerick v. Harris, 1 Binn, 420; New-
hall v. Marsh, 19 Ili. 382.
3 Cooley, Const. Lim. 11; Ohio Life
InS. Co. v. Debolt, 16 How. 416. The
reader must not fail to observe that
state Constitutions are grants to the
judicial and executive departments
of the state. People v. O’Toole, 164Ill.
344; People v. Hutchinson, 172 id. 486.
4 Mr. Justice Story says: “That
government can scarcely be deemed
to be free where the rights of prop-
erty are left solely dependent upon
the will of a legislative body, with-
out any restraint. The fundamental
maxims of a free government seem
to require that the rights of personal
liberty and private property should
be held Sacred. At least no court of
justice in this country would be war-
ranted in assuming that the power
to violate and disregard them — a
power SO repugnant to the common
principles of justice and civil lib-
erty — lurked under any general
grant of legislative authority, or
Ought to be implied from any gen-
eral expressions of the will of the
people. The people ought not to be
presumed to part with rights so vital
to their security and well-being with-
Out very strong and direct expres-
Sions of such an intention. In Ter-
rett v. Taylor (9 Cranch, 43), it was
held by this court that a grant or
title to lands once made by the leg-
islature to any person or Corporation
is irrevocable, and cannot be re-
assumed by any subsequent legis-
lative act; and that a different doc-
trine is utterly inconsistent with the
great and fundamental principle of
a republican government and with
the right of the citizens to the free
enjoyment of their property lawfully
acquired.” Wilkinson v. Leland et
al., 2 Pet. 628–657.
18
274. PARTITION OF THE POWERS OF GOVERNMENT.
Is 295.
to acts of the kind and quality which appertain to its depart-
ment.
The converse is equally true, that each system of government
and each department of each system has, without any express
grant, the inherent right to accomplish all objects naturally
within the orbit of that department, not expressly limited by the
fact of the existence of a similar power elsewhere or the ex-
press limitations in the constitution." - n
The great principle of constitutional law, which may be
again reiterated, and which no student of our system should at
this time overlook, is that the very principle of partition of
power embraced in the constitutional requirement that the
powers of government shall be divided between the legislative,
executive, and judicial departments, contains in itself a limita-
tion upon the power of each department just as efficacious as
though in all of them, there was the express inhibition against
any one exercising powers of a nature belonging to the other
department.”
1This principle lies at the basis of
the great controversies which have
heretofore been carried on between
the so-called strict constructionists,
the sharpest and most subtle distinc-
tions being made in theso-called Legal
Tender Cases. In the final disposition
of these cases Justice Bradley says:
“To many purposes the United States
are to be considered as one undi-
vided, independent nation, and as
possessed of all the rights, and pow-
ers, and properties, by the law of na-
tions incident to such. Whenever
an object occurs, to the direction of
which no particular state is compe-
tent, the management of it must, of
necessity, belong to the United States
in congress assembled. There are
many objects of this extended nat-
ure.” Legal Tender Cases, 12 Wall.
458; Boyd's Cases, 156. See 1 Wil-
son’s Works, 556–558 and notes.
2 Clough v. Curtis, 134 U. S. 361;
In re Swan, 150 U. S. 367.
Judge Cooley says: “If, therefore,
no restraints are imposed upon legisla-
tive discretion beyond those specific-
ally stated, the township and county
government of any portion of the
state might be abolished, and the
people be subjected to the rule of
Commissions appointed at the capital.
The people of such portion might
thus be kept in a state of pupilage
and dependence to any extent and
for any period of time the state,
might choose.
“The doctrine that within any gen-
eral grant of legislative power by the
Constitution there can be found au-
thority thus to take from the people
the management of their local con-
cerns, and the choice, directly or in-
directly, of their local officers, if
practically asserted, would be some-
what startling to our people, and
would be likely to lead hereafter to
a more careful scrutiny of the char-
ters of government framed by them,
lest sometime, by an inadvertent use
of words, they might be found to
have conferred upon some agency of
their own the legal authority to take
§ 226.] PARTITION OF THE POWERS OF GOVERNMENT.
275
SEC. 226. IReasons for Separation.—In the theory of gov-
ernment which is called republican, the first principle, as has
before been announced, is the principle of representation, in
which all departments act as agents of the great body of the
people; but the first principle of government is that those de-
partments of government between which there exists a natural
distinction shall be separated.
We shall have occasion to examine more minutely the powers
of each of the separate departments, and it will only be neces-
sary here to notice the grounds and reasons for the separation
of the departments of government.
The general principles which underlie this partition of power,
together with the historical matter connected with it, are so
thoroughly examined by the Supreme court of New Hampshire
that a repetition of their language will perhaps constitute the
clearest and most authoritative exposition of this subject: "
“It is well known and considered that “in the distinct and
Separate existence of the judicial power consists one main pre-
servative of the public liberty;” that indeed ‘there is no liberty
if the power of judging be not separated from the legislative
and executive powers.” In other words, that ‘the union of
these two powers is tyranny;” or, as Mr. Madison observes,
‘may justly be pronounced the very definition of tyranny;”
Or, in the language of Mr. Jefferson, “is precisely the definition
of despotic government.”
of government which are within the
away their liberties altogether. If
contemplation of the people when
we look into the several state consti-
tutions to see what verbal restric-
tions have heretofore been placed
upon legislative authority in this re-
gard, we shall find them very few
and simple. We have taken great
pains to surround the life, liberty and
property of the individual with guar-
anties, but we have not, as a general
thing, guarded local government
with similar protections. We must
assume either an intention that the
legislative control should be constant
and absolute, or, on the other hand,
that there are certain fundamental
principles in our general framework
they agree upon the written charter,
subject to which the delegations of
authority to the several departments
of government have been made.
That this last is the case, appears to
me too plain for serious controversy.”
IPeople ex rel. v. Hurlbut, 24 Mich. 44.
1 Merrill v. Sherburne, 1 N. H. 199;
8 Am. I)ec. 57. This case is very
widely cited.
21 BIk. Com. 269.
8 Montesquieu, B. 11, Co. 6.
4 Dash v. Van Kleek, 7 Johns. 508.
5 Fed. NO. 47.
6 Notes on Virginia, 195.
276 PARTITION OF THE Powers of govERNMENT. [š 227.
SEC. 227. The Principle Pactended in Our Constitutions —
In the United States the Judicial is Separated from the JEa:-
ecutive.—“Not a single constitution, therefore, exists in the
whole Union which does not adopt this principle of separation as
a part of its basis.' We are aware that in Connecticut, till lately,
and still in New York, a part of their legislature exercises some
judicial authority.” This is probably a relic of the rude and
monarchical governments of the Eastern world, in some of
which no division of powers existed in theory, and very little
in practice. Even in England the executive and judicial de-
partments were once united.” And when our ancestors emi-
grated hither, they, from imitation, smallness of numbers and
attachment to popular forms, vested often in one department
not only distinct, but sometimes universal, powers.”
“The practice of their assemblies to perform judicial acts”
has contributed to produce an impression that our legislatures
can also perform them. But it should be remembered that those
Fed. No. 81; Bllº. Com. (App., Tuck-
er's Ed.) 126; Niles’ Reg. 2; 4 id. 400.
24 Niles’ Reg. 443.
31 Bik, Com. 267; 2 Hutch. Hist.
107.
“The legislative, executive and ju-
diciary are all creatures of the con-
stitution, each confined in its action
to the circumscribed sphere assigned
it, and cannot rightfully exercise
any power which is repugnant to
that instrument or not within their
respective sphere of action.
“The province of the legislative
department of the government is to
make laws, confining itself within
the limits prescribed by the consti-
tution. It cannot usurp the powers
confided to either of the other de-
partments without violating the dec-
laration in the bill of rights that they
shall be forever separate and distinct
from each other, which would be a
subversion of the principles that lie
at the foundation of the government.
Tor, if the legislature could, without
control, exercise judicial as well as
legislative powers, the tenure of
everything dear and valuable to the
citizen would be the unrestricted
will of that body, to guard against
which the provision was introduced
for a division of the powers of the
government. . . . And in Berret v.
Oliver, 7 Gill & J. 191, an act of the
legislature declaring certain deeds
and decrees to be void, and divesting
certain persons named of real and
personal property held under them
and vesting it in W. E. Berret, was
pronounced to be in violation of the
provision in the bill of rights, ‘that
the legislative, executive and judi-
cial powers of government ought to
beforever separate and distinct from
each other,’ and of the constitution
of the United States, that “no state
shall pass any law impairing the Ob-
ligation of contracts,” and utterly
null and void.” Regents v. Williams,
9 Gill & J. 365; 31 Am. Dec. 72.
4 Wilson's Works (last ed.), p. 365;
1 Minot's Hist. 27; 1 Hutch. Hist. 30;
2 id. 250, 414,
5 Calder v. Bull, 3 Dall. 386.
§ 228.] PARTITION OF THE POWERS OF GOVERNMENT. 277
assemblies were restrained by no constitutions, and the evils of
this practice, united with the increase of political science, have
produced the very changes and prohibitions before mentioned.
The exceptions in Connecticut and New York do not affect the
argument, because those exceptions are not implied, but detailed
in specific terms in their charters; and this power also, as in
the house of lords in England, is in those states to be exercised
in the form of judgments, and not of laws, and by one branch
and not by all of the legislature.” “The entire legislature can
perform no judiciary act.” It is questionable whether at this
day such an act by all the branches of the British parliament,
though in theory omnipotent, could be enforced.” “There is a
statute made in the fourth year of King Henry IV., chapter 22,
whereby it is enacted that judgment given by the king's courts
shall not be examined in the chancery, parliament, nor else-
where.” -
SEC. 228. The Separation is Itself a Limitation on Power.—
“Be this, however, as it may in that country, one great object
of constitutions here" was to limit the powers of all depart-
ments of government;" and our constitution contains many
express provisions in relation to them which are wholly irrec-
oncilable with the exercise of judicial powers by the legisla-
ture, as a branch of the judiciary. That clause which confers
1 Fed. No. 44. lative power-may trample whenever
34 Niles’ Reg. 444, it may think fit? Of what value are
3 Fed. No. 47. the most important franchises, in-
41 Blk. Com. 44; 2 id. 344. See volving great public interests, even
Stockdale v. Hansard, 9 Ad. & El. 1;
Regents v. Williams, 9 Gill & J. 365.
* Doctor and Student, dialogue 1,
Ch. 8.
6 Fed. No. 81.
7 Bill of Rights, arts. 1, 7, 8, 38.
“‘The legislature, being sovereign,
possesses all powers over the subject
not taken from it by the constitu-
tion, and, when the legislature acts,
a Court must see its way clear before
they will pronounce its acts void for
transcending its powers.” The sov-
ereignty of the legislature is, how-
ever, not without its limitations, else
of what avail are written constitu-
tions, on whose provisions the legis-
when protected by the Solemn guar-
anties of the constitution, if they
may be invaded and disregarded
whenever the increase of population
or business, as argued in this case,
may seem to render it expedient 2
The mischievous effects of the prin-
ciple contended for by the plaintiff
in error have been already felt in ref-
erence to such interests, and it be-
comes essential to their security that
our judicial tribunals should inter-
pose their authority to guard against
this wanton abuse of power.” War-
ner v. The People, 2 Den. 272; 43 Am.
Dec. 740. See Williams v. Leland, 2
Pet. 657.
27S PARTITION OF THE POWERS OF GOVERNMENT. [$229.
upon the ‘general court’ the authority “to make laws,” pro-
vides, at the same time, that they must not be repugnant
or contrary to the constitution.” One prominent reason for
creating the judicial distinct from the other legislative depart-
ment was that the former might determine when laws were
thus ‘repugnant,’ and so operate as a check upon the latter,
and as a safeguard to the people against its mistakes or en-
Croachments. But the judiciary would in every respect cease
to be a check on the legislature, if the legislature could at
pleasure revise or alter any of the judgments of the judiciary.
The legislature, too, would thus become the court of last re-
sort, ‘the superior court,” or ‘supreme judicial’ tribunal of the
state; and those expressions, so often applied to this court in
the constitution," would become gross misnomers. If our legis-
lators, too, possessed such high judicial powers, much consist-
ency cannot exist in the provision that, “upon important ques-
tions of law and upon solemn Occasions,’ they may be advised
by the justices of this court, which, on the above principle, is
inferior and subordinate. Nor is this all. “Every reason which
recommends the tenure of good behavior for judicial officers
militates against placing the judiciary power in the last resort
in a body composed of men chosen for a limited period; men,
too, not selected for their knowledge of the laws, nor with a
view to those other qualifications which fit men to be judges.”
Nor are our legislators commissioned and sworn in any man-
ner as judicial officers are required to be. Nor can they, like
judges, for malconduct, be removed by address or impeach-
ment, because the houses themselves are the tribunal to try
impeachments; and both united are the bodies authorized to
present addresses for removals.” Nor can it easily be conceived
that the judiciary are independent of the legislature to any ex-
tent, however Small, if the legislature itself compose a part of
that judiciary.””
SEC. 229. The Separation is Not Complete.—It is not within
the plan of government that each department should be entirely
separate, distinct and independent. On the contrary, they are
co-ordinate" and mutually dependent members of one system,
1 Const., 7, 9, 22, 20. See Dennett's Petitions, 32 Me. 508;
2 Hamilton's Works, 255. 54 Am. Dec. 604,
3 Const., 13. 5 De Chastellux v. Fairchild, 15 Pa.
4 Merrill v. Sherburne, 1 N. H. 199. St. 18.
§ 229.] PARTITION OF THE POWERS OF GOVERNMENT. 279
intended to aid and control each other. Thus, the veto power of
the chief executive, and the supervisory power of the judiciary,
are examples of the system of checks and balances which per-
vades the whole plan, and prevents the supremacy of any de-
partment." * - -
It was not uncommon formerly, as pointed out above, for
the general court or the general assembly, which was the leg-
islative body of the state, to be intrusted with some portion of
the judicial power. For instance, by the thirty-second article
of the constitution of the state of New York, a court for the
correction of errors and trial of impeachments was composed
of the president of the Senate for the time being, and the sen-
ators, the chancellor and the judges of the supreme court, or
a majority of them, and, when an impeachment was prosecuted
against any member of the court, his functions as an officer
were temporarily suspended. In cases of an appeal in equity
cases the chancellor was required to state the reason of his de-
cree, but he had no voice in the final sentence.
It was also required that in writs of error the judges of the
court of errors must assign their reasons for such judgment,
but they could have no voice in the decision.”
1 Duer's Outlines, 35; Marbury v.
Madison, 1 Cranch, 137. Wilson says:
“We are now led to discover that
between these three great powers of
government there ought to be a mut-
ual dependency, as well as a mutual
independency. We have described
their independency; let us now de-
scribe their dependency. It consists
in this: that the proceedings of each,
when they come forth into action
and are ready to affect the whole,
are liable to be examined and con-
trolled by one or both of the others.”
1 Wilson's Works, 367.
* See for important case adjudi-
cated under this system, Beebe v.
Bank of New York, 1 Johns. 529.
Judge Story, in his work on the
Constitution, says: “But when we
Speak of a separation of the three
great departments of government,
and maintain that their separation is
indispensable to public liberty, we
are to understand this maxim in a
limited Sense. It is not meant to
affirm that they must be kept wholly
Separate and distinct and have no
Common link of connection or de-
pendence, one upon the other, in the
slightest degree. The true meaning
is, that the whole power of one of
these departments should not be ex-
ercised by the same hands which
possess the whole power of either of
the other departments, and that such
exercise of the whole would subvert,
the principles of a free constitution.”
(1 Story on Const. (5th ed.), sec. 525.)
“Notwithstanding the memorable
terms in which this maxim of a di-
vision of powers is incorporated into
the bills of rights of many of our
state constitutions, the same mixture
will be found provided for, and in-
deed required, in the same solemn.
280 PARTITION OF THE POWERS OF GOVERNMENT. [$ 230.
Certain functions of a judicial nature are still exercised in
all the states by the legislature. The legislatures of the states.
have, by immemorial custom reaching back to parliamentary
times, exercised a summary jurisdiction over officers of the
state intrusted with the collection and care of the revenue.
These legislative bodies, or delegated officers empowered by
them, have been allowed summary jurisdiction to examine into
the accounts and adjudicate the amount which was due, and
upon such judgments process has been issued and the estate of
the party sold thereunder."
SEC. 230. Quasi-judicial Powers of Eacecutive and Administra-
tive Officers.-In the administration of the general affairs of
to invest local boards (e.g., of
the state it is not uncommon
instruments of government. . . .
Indeed, there is not a single constitu-
tion of any state in the Union which
does not practically embrace some
acknowledgment of the maxim and
at the same time some admixture of
powers constituting an exception to
it.” Ibid., sec. 527, p. 395; People ex
rel. v. Simons, Ill. Sup. Ct., October,
1898. -
1 Murray’s Lessee v. Hoboken L. &
Imp. Co., 18 How. 272. See also
County of Santa Clara v. Pacific R.
Co., 18 Fed. Rep. 420.
“It has pleased Pennsylvania in
her constitution to make what most
jurists would pronounce animperfect
separation of those powers — she has
not thought it necessary to make
any imperative provision for incor-
porating the equity jurisdiction in its
full latitude into her jurisprudence,
and the consequence is, as it ever
will be, that so far as her common-
law courts are incapable of assuming
and exercising that branch of juris-
diction, her legislature must often be
Called upon to pass laws which bear
a close affinity to decrees in equity.
A like specimen of this will
be found in the early legislation of
the state of South Carolina, in which,
before the establishment of a court
of equity, laws are frequently found
authorizing administrators or others.
to sell lands for the payment of
debts and for similar purposes. And
it has been admitted in argument
that similar laws are of frequent oc-
Currence in Pennsylvania.” Livings-
ton v. Moore, 7 Pet. 469.
This ancient practice is now en-
tirely discarded in Pennsylvania, and
no Courts are more insistent upon
the observance of the principles of
Separation than are the courts of that
state. In Commonwealth v. War-
wick, 172 Pa. St. 140, Mr. Justice
Sterrett said: “It was unavoidable,
in their earlier administration, that
conflict should have arisen between
the legislative and judicial branches
of our government. The form of
government was new, and the ex-
act limitations of duty and power
were imperfectly understood. Even
their co-ordination of power was.
doubted by some (Ekain v. Raub, 12
Serg. & R. 330), and the feeble re-
sistance offered by the judiciary
naturally encouraged encroachments.
by the legislature. The mischief
which resulted became so great that
this court was compelled, in Dorman
v. Heist, 5 Watts & S. 171, and Bol-
ton v. Johns, 5 Pa. St. 145, to take a .
stand in assertion of the power which
the constitution had conferred.”
§ 230.] PARTITION OF THE PowRs OF GOVERNMENT. 281
equalization) or individuals with power quasi-judicial, at least
in its nature, but ordinarily such officers are not invested with
final jurisdiction, and are compelled to give the parties notice
and certify their findings to some regular judicial tribunal.
Such an instance is to be found in the provisions of article 9
of the constitution of the state of Illinois.”
So, also, supervisors of the counties, commissioners of high-
ways, township officers, etc., exercise mixed powers, and these
are justified upon long-established usage, derived from the com-
mon law. Such bodies, existing before the constitution took
effect, are held by the courts to have been tacitly recognized
by them as existing essential parts of the system.”
In a case for the collection of the revenue, Judge Cooley
made the following application of these principles:
“In this case there has been no prosecution or suit; the county
treasurer has adjudged the case without a hearing, and issued
final process to seize property in enforcement of his conclusion.
Such summary process, it is said, which gives the party whose
property is seized no opportunity to contest the claim set up
against him, cannot be due process of law. .
“There is nothing in these words, however, that necessarily
implies that due process of law must be judicial process. Much
of the process by means of which the government is carried
On and the order of society maintained is purely executive or
administrative. Temporary deprivations of liberty or property
must often take place through the action of ministerial or ex-
ecutive officers or functionaries, or even of private parties,
where it has never been supposed that the common law would
afford redress. One in whose presence a felony is committed
is in duty bound to restrain the offender of his liberty without
Waiting for the issue of a magistrate's warrant; * and the trav-
eler who finds the public way founderous crosses the adjacent
field without fear of legal consequences.” Our laws for the
exercise of the right of eminent domain protect parties in
going upon private grounds for the preliminary examinations
* Owners v. People, 113 Ill. 810. See See also People v. Board Met. Police,
also Ames v. Port Huron, 11 Mich. 48 Barb. 524. .* -
147; Weimer v. Bunbury, 30 Mich. 84 Blk. Com. 292, 293.
201. 4. 4 Holmes v. Seeley, 19 Wend. 507.
*Houghton v. Austin, 47 Cal. 654. See also Campbell v. Race, 7 Cush.
282 PARTITION OF THE POWERS OF GOVERNMENT. [$ 230.
and surveys. It may be said that in none of these cases is the
deprivation final or permanent, but that is immaterial. The
construction is as clearly violated when the citizen is unlaw-
fully deprived of his liberty or property for a single hour as
when it is taken away altogether. Estrays were at the com-
mon law taken up and disposed of without judicial proceedings,'
and our statutes have always made provisions under which, if
they were complied with, the owner of stray beasts might be
deprived of his ownership by ea parte proceedings not of a
judicial character. Where an individual creates with his prop-
erty a public or private nuisance, the common law permits the
citizen who suffers from it to become ‘his own avenger, or to
minister redress to himself,’” and he may even destroy the
property if necessary to the removal of the nuisance.” The de-
struction by the act of the party is as lawful as if it had been
preceded by a judgment of a competent court, the only differ-
ence being that the party, when called upon to justify the act,
must in the one case prove the facts warranting it, while in the
other he would be protected by the judgment. No one prob-
ably would dispute the levy of distress by a private individual
being due process of law in the cases in which the law permits
it." It is true that the party whose property has been dis-
trained may contest the proceedings by suit in the common-law
courts, but he fails if they prove to have been regular. . The
military law affords abundant illustration on this point. The
principles on which it is administered have but little in com-
mon with those which control judicial investigations, and the
process under which men are restrained of their liberty under
it is sometimes very summary and even arbitrary. But this
law is just as much subject to the constitutional inhibitions as
is the code of civil remedies.” But the proceedings for the levy
and collection of the public revenue afford still better illustra-
tion. Almost universally these are conducted without judicial
forms and without the intervention of the judicial authority;
the few cases in which statutes have required the action of
courts being exceptional. Where such action is not required,
11 Blk. Com. 297. 10 Mass. 70; Wetmore v. Tracy, 14
23 Blk. Com. 5, 6. Wend. 250. .
* Rung v. Shoneberger, 2 Watts, 23; 43 Blk. Com. 6.
Inhabitants of Arundel v. McCulloch, 5 Ex parte Milligan, 4 Wall. 2.
§ 230.] PARTITION OF THE POWERS OF GOVERNMENT. 283
the proceedings are regarded as purely administrative, and any
hearing allowed to parties in their progress has not been in the
nature of a trial, but as a means of enlightening the revenue
officers upon the facts which should govern their action. This
has been so from time immemorial, and it has never been Sup-
posed that a tax-payer had a constitutional right to resist the
tax because he had never had any judgment against him on a
judicial hearing to fix its amount.”"
I Weimer v. Bunbury, 30 Mich. 200–
210. Judge Cooley in the same case
said: “We are, therefore, of necessity
driven to an examination of the pre-
vious condition of things, if we would
understand the meaning of due pro-
cess of law, as the constitution em-
ploys the term. Nothing previously
in use, regarded as necessary in gov-
ernment and sanctioned by usage,
can be looked upon as condemned by
it. Administrative process of the
customary sort is as much due pro-
cess of law as judicial process. We
should meet a great many unex-
pected and very serious embarrass-
ments in government if this were
otherwise. The words, it has very
justly been said, ‘were intended to
secure the individual from the arbi-
trary exercise of the powers of gov-
ernment, unrestrained by the estab-
lished principles of private rights and
distributive justice.” Per Johnson, J.,
in Bank of Columbia v. Okely, 4
Wheat. 235. It has been said, with
special reference to process for the
collection of taxes, that ‘any legal
process which was originally founded
in necessity, has been consecrated by
time, and approved and acquiesced
in by universal consent, must be em-
braced in the alternative “law of the
land.”’ State v. Allen, 2 McCord, 56.
In High v. Shoemaker, 22 Cal. 363,
the same doctrine was held in a rev-
enue case. In Rockwell v. Nearing,
35 N. Y. 308, which is quoted for de-
fendant in , error as sustaining his
position, the opposite view is very
distinctly taken. ‘There are,” says
Porter, J., “many examples of sum-
mary proceedings which were recog-
nized as due process of law at the
date of the constitution, and to these
the prohibition has no application.’”
Weimer v. Bunbury, 30 Mich. 200–214.
CHAPTER XIII.
TJNITED STATES CONGRESS.
SEC. 231. Source of Information — Lack of Method.—In
treating of the powers and duties of magistrates of the national
government, one has the option to begin with either depart-
ment, and the closer the investigation the more it will be ap-
parent that in the matter of Order and arrangement little aid
is to be found in the sources from which the material must be
gathered."
The primary source of this information is necessarily in the
constitution of the United States; but secondary to this, and
no less important, are the laws passed in pursuance thereof, and
the judicial construction which is placed on the constitution
and these laws."
Of no small degree of importance, in the same respect, are
the usage and customs of the various departments of govern-
ment. *
It is a fact which has occasioned remark that American law-
yers have paid but scant regard to the manner of arrangement
in making constitutions and in the arrangement of statute law.”
A source of considerable confusion is found in the fact that
in political legislation, through the medium of constitutional
1 There are several very elaborate
discussions of the powers of national
magistrates, all, however, under the
title of constitutional law; the
Imost elaborate probably being that
of “Story’s Commentaries on the
Constitution,” which follows the con-
stitution provision by provision. An-
other elaborate treatment of the
greatest value to the practicing
lawyer is the great work of the late
Thomas M. Cooley, under the title of
“Constitutional Limitations.” This
work, however, is wholly unfit for
an introductory work. The same
author has produced a manual upon
the same subject, much better con-
stituted to the needs of the student,
and justly popular for that use.
The most orderly presentation of the
subject is the elaborate one of Chan-
cellor Kent.
2 “The Americans, like the English,
have no love for scientific arrange-
ment. Although the constitutions
have been drafted by lawyers, and
sometimes by the best lawyers of
each state, logical classification and
discrimination have not been sought
after.” Bryce's Am. Com, 427.
§ 232.] UNITED STATEs congress. 285
conventions, the people very frequently make provision for
matters of trifling importance, and by no means necessary or
proper for the consideration of such bodies."
It is then to the sources which have just been noticed that
we must turn for our treatment of the national magistrates.
As a preliminary to the separate treatment of the govern-
mental departments, we devoted the last chapter to a view
of the grounds and effect of the separation of governmental
agencies into three branches, and the necessity of requiring
each to confine its operations to the prescribed orbit.
SEC. 232. System of Checks and Balances.—In treating the
departments separately, another phase of the same principle
operating under a distinct name, and yet being but a corollary of
the principle of separation, is the policy everywhere present of
limiting mere personal discretion and substituting a legal One,
and destroying individual whim, caprice and bias, and in this
manner insure equality and uniformity. The English law was
insistent on marking strict limits to judicial power, but it took
longer to limit the discretion of parliament.”
This is done in the United States by what is called a system
1 “The people found the enactment
of a new constitution a convenient
opportunity for enunciating doc-
trines they valued and carrying
through reforms they desired. It
was a simpler and quicker method
than waiting for legislative action.
So, when there was a popular demand
for the establishment of an institu-
tion, or for some legal change, this
was shoveled into the new consti-
tution and enacted accordingly.”
Bryce's Am. Com. 427.
A notable exception to these ob-
servations is found in the arrange-
ment of the law under the modern
codes, wherever the opportunity has
been present to revise and recompile
the whole law of the particular state,
as for example the state of California.
2 The Judicial Power in England.—
Broom gives as one of his maxims:
“That system of law is best which
confides as little as possible to the
discretion of the judge — that judge
is best who relies as little as possible
On his own opinion.
“For it must be remembered that
the judges are appointed to admin-
ister and not to make the law, and
that the jurisdiction with which
they are intrusted has been defined
and marked out by the common law
or acts of parliament.
“It is moreover a principle con-
sonant to the spirit of Our Constitu-
tion, and which may constantly be
traced as pervading the whole body
of our jurisprudence, that Optima est
lead quare minimum relingwit arbi-
trario judicis optimus judea, gwi min-
ſimum sibe. (Bacon’s Aph. 46—2;
Dwarris, Stat. 782; Collins v. Blan-
term, 2 Wils. Rep. 341; Master v. Mil-
ler, 4 Tenn. 344; 2 H. BIk. 141; 6
Scott, N. R. 180.)” Broom's Max. (8th
286 UNITED STATES CONGRESS. [$ 232.
of checks and balances. By this the separate departments are
shown to be not entirely independent."
The policy of division of powers and the destruction of in-
dividual discretion by a system of checks and balances is car-
ried to an extent in the constitution of the United States and
of the several states greater than ever before practiced.
The example which seemed most striking and audacious to
the jurists of the early period of the United States was the
power of the judiciary to annul an act of the legislature.
Swift, in his System of Laws, pronounces the contention an
absurdity, and even so late as 1825 a noted jurist of Pennsyl-
vania doubted the power.”
But at the present time the most striking example is found
in the jurisdiction now generally admitted to exist, and occa-
sionally exercised by the courts, over the discretion which is
vested in the legislative body of the state, even in matters po-
litical, for example, the power to apportion the state into polit-
ical districts for purposes of election.”
ed.), p. 84. See Mansfield, J., in Reg.
v. Wilkis, 2 Burr. 25–29.
The Legislative Power in England.
The ancient idea that the legislative
department could do anything it
pleased in any manner it liked has
given way to the idea that there are
limits as to what and how it may
act. Thus, saith Judge Coleridge:
“It is enough to say that the law is
supreme over the house of commons,
as over the crown itself. If the lim-
its of the law be passed by either for
the most satisfactory reasons, they
are indeed themselves responsible;
but the law will require a strict ac-
count of the act in the persons of
their agents, and these, according to
the nature of the illegality, will be an-
swerable, civilly or criminally.” How-
ard v. GOSSett, 10 Ad. & El. 359; 59
E. C. L. 358; Stockdale v. Hansard, 9
Ad. & El. 1; 36 E. C. L. 118.
1 Amte, Sec. 229.
2 This topic will be treated in de-
tail under Judicial Power, but it may
be useful here to notice these strik-
ing instances. Swift, System of
Laws, p. 52 (1795). The question was
put at rest by the decision of Mar-
bury v. Madison, 1 Cranch, 137 (1803),
in which Marshall, C. J., only fol-
lowed many other decisions. It is
remarkable that so great a judge as
Gibson should so late as 1825 ques-
tion the power. See Eakin v. Raub,
12 S. & R. 320.
8 Mr. Justice Grant, of the Michi-
gan supreme court, says: “It (the
law) requires the exercise on the part
of the legislature of an honest and
fair discretion in apportioning the
districts so as to preserve as near as
may be the equality of representa-
tion. This constitutional discretion
was not exercised in the apportion- .
ment act of 1891. The facts them-
selves demonstrate this beyond any
controversy, and no language Can
make the demonstration plainer.
There is no difficulty in making an ap-
portionment that shall satisfy the de-
§ 232.] TJNITED STATES CONGRESS. 287
The appellate jurisdiction habitually exercised by judicial
tribunals is a check upon the trial courts, and restrains the
abuse of the discretion of the judge or the prejudice and pas-
sion of the jury."
Attempts are frequently made to enumerate these checks
and balances, but it will be seen that they consist in nothing
more or less than an enumeration of what powers one depart-
ment may exercise alone and entirely independent of any as-
sistance from any other department, or without any power in
any other department to stay, change or annul it. Or, on the
other hand, are those instances where two departments must
combine in an act, or One may exercise a restraining or annul-
ling power over the other.
mand of the constitution. It is not
the purpose or province of this court
to inquire into the motives of the
legislative bodies except as they ap-
pear in the public acts or journals of
such bodies. The validity of an act
does not depend upon the motive for
its passage. The duty of the court
begins with the inquiry into the con-
stitutionality of the law, and ends
with a determination of that ques-
tion.” Giddings v. Blacker, Sec. of
State, 93 Mich. 1.
In the case of People v. Rice, 135
N. Y. 473, the court recognizes the
discretionary power of the legisla-
ture, but finds no abuse of such power
in that case. In reference thereto
Justice Peckham says: “We start,
then, with the proposition that to
the legislature is intrusted some dis-
Cretion in the matter of apportion-
ment. Is the court to interfere with
such power whenever it thinks that
the legislature might possibly have
come nearer to an equality? We do
not believe in the propriety or neces-
sity of any such rule. On the con-
trary, we think that the courts have
no power in such case to review the
exercise of a discretion intrusted to
the legislature by the constitution,
wnless it is plainly and grossly abused.
The expression as nearly as may
be,” when used in the constitution
with reference to this subject, does
not mean as nearly as a mathemat-
ical process can be followed. It is a
direction addressed to the legislature
in the way of a general statement of
the principles upon which the appor-
tionment shall be made. The legis-
lative purpose should be made to
make a district of an equal number
of inhabitants as nearly as may be,
and how far that may be carried out
in actual practice must depend gen-
erally upon the integrity of the legis-
lature. We do not intimate that in
no case could the action of the legis-
lature be reviewed by the courts.
Cases may easily be imagined where
the action of that body would be so
gross a violation of the constitution
that it could be seen that it had been
entirely lost sight of, and an inten-
tional disregard of its commands,
both in the letter and in the spirit,
had been indulged in.” See People v.
Thompson, 155 Ill. 451.
1 Discretion of the chancellor is a
legal one. Highley v. Deane, 168 Ill.
266.
288 TJNITED STATES CONGRESS. [šš 233, 234.
Illustration.—In matters purely political the judiciary has
no supervision over the legislature," while the executive may
restrain by his veto, but not entirely control;” here is what
may be called a balance.
In matters of legislation the judiciary has a power to declare
an act void if it is contrary to the constitution either as against
an express provision or as transgressing the rule of separation;
this is a check.” - -
SEC. 233. Plan of Treatment.—It is apparent, then, that
under this head of “checks and balances” all the powers of the
departments might be examined, and in fact nearly all of con-
stitutional law; but the same result is accomplished in a more
orderly manner by pursuing the course adopted of treating each
department in its order.
In pursuance of this plan the congress of the nation is the
next subject which engages the attention. -
We then examine its constituent elements, choice of mem-
bers, their terms of office, their privileges, and the powers of
each department separately and jointly—the relation and de-
pendence upon other departments, or what is called their concur-
rent powers.
SEC. 234. Congress is Not Modeled After Parliament.--It is
very frequently stated that the English parliament is a model
for the American congress, and that the separation of that body
into the three estates explains the presence in this body of the
vice-president as president of the senate, standing as the shadow
of the executive; and the house of representatives, which is sup-
posed to be analogous to the house of commons; and the senate,
which is said to hold a like relation to the house of lords.
This view no doubt is a result of the prominence given to the
treatment of these subjects in Blackstone's Commentaries, and
the habit of slavish adherence to the principles therein stated,
and the supposition that the subject of checks and balances, as
therein treated, is in fact practically exhausted.
The resemblance, however, to the parliament of Great Britain
I See White v. Hart, 13 Wall. 646, here it is qualified by right to pass
and Citation. the act by a larger vote.
* The veto of the crown is absolute; 3 Marbury v. Madison, 1 Cranch,
137.
§ 235.] TJNITED STATES CONGRESS. 289
as it existed at the time of the American Revolution is very
slight."
The house of lords was not a representative body at all, while
the senate represents the states, the idea being to give to the
states in that body equality of representation.
The members of congress, on the other hand, represent local
districts in the United States, the principle being to give to
the people of every locality equal representation according to
numbers, distributing the burdens of the government in ac-
cordance with the voice in its councils.
In truth, little analogy exists between the manner of deriva-
tion and the powers and rights of the British parliament and
the American congress. On the contrary, they are almost
opposite in nature and degree. .
This idea is well expressed by Mr. Justice Harlan in a re-
cent case in the United States supreme court. He said: “In
view of the essential differences between the American and
English governments in respect of the source and depositaries
of power, the decisions of the English courts on this subject
(the right of a citizen to sue a state) are entitled to but little
weight.”
The powers exercised by parliament are not in all cases de-
rivative, neither are they in theory circumscribed, either as to
objects or extent, although in practice there are barriers which
it may not pass.
SEC. 235. Origin of Congress.-Congress as it now exists
came into being and continues by virtue of section 1, article 1,
of the constitution of the United States, which provides that
! “The nearest parallels to such a
federal union as that formed in 1789
were then to be found in the Achaen
and Lycian leagues, which, however,
were not mere leagues, but federated
nations. Both are referred to by the
authors of the Federalist, but their
knowledge was evidently scanty.
The acuteness of James Wilson had
perceived that the two famous Gon-
federations of modern Europe did
not supply a model for America. He
Observed in the Pennsylvania con-
vention of 1788: ‘The Swiss Cantons
are connected only by alliances. The
TJnited Netherlands are indeed an
assemblage of societies; but this as-
semblage constitutes no new One, and
therefore it does not correspond with
the full definition of a confederate
republic.” Elliot's Debates, vol. 2,
p. 422. The Swiss confederation has
now become a republic at once fed-
eral and national, coming in most re-
spects very near to its American
model.” Bryce's Am. Com. 20, note2.
2 Tindal v. Wesley, 167 U. S. 204–
214.
19
290 UNITED STATES CONGRESS. [$236.
“all legislative power herein granted shall be vested in a con-
gress of the United States, which shall consist of a senate and
house of representatives.”
In this provision it is seen that the legislative power of con-
gress is a granted power, and in it is observed the separation of
the legislative power into two branches, heretofore noticed."
SEC. 236. Distinction. Between National and State Constitu-
tions.—In all investigations as to the extent of legislative
power and the construction of legislative acts, the distinction
between the constitution of the United States and the consti-
tutions of the states as regards the nature of the powers and
the mode by which the body is invested with them should be
borne in mind. -
When a law of congress is under consideration, we must in-
quire whether the power is granted; for the national constitu-
tion is a grant of power to the legislative body as well as to
all other departments.
On the contrary, when a state law is under consideration it
should be borne in mind that the constitution of a state is not
a grant of power to the legislative department. Subject to
certain, natural limitations, founded in principles of justice and
the written constitution, which have been heretofore noticed,
the state legislature has all legislative power which is not de-
nied it by the constitution.
In the same connection we may properly observe that while
the constitution of a state is not a grant of power to the legis-
1 “Welookin the constitution of the
TJnited States for grants of legisla-
tive power, but in the constitution of
the state to ascertain if any limita-
tions have been imposed upon the
complete power with which the leg-
islative department of the state was
vested in its creation. Congress can
pass no laws but such as the consti-
tution authorizes either expressly or
by clear implication, while the state
legislature has jurisdiction of all sub-
jects on which its legislation is not
prohibited. “The law-making power
of the state,’ it is said in one case
(Sill v. Corning, 15 N. Y. 297, 303),
‘recognizes no restraints, and is.
bound by none, except such as are:
imposed by the constitution. That
instrument has been aptly termed a
legislative act by the people them-
selves in their sovereign capacity,
and is therefore the paramount law.
Its object is not to grant legislative
power, but to confine and restrain it.
Without the constitutional limita-
tions, the power to make laws would
be absolute. These limitations are:
created and imposed by express.
words, or arise by necessary implica-
tion.’” Cooley's Const. Lim. 206.
§ 237.]
TJNITED
STATES CONGRESS. 291
lature, it is to be regarded as a grant of power to the judiciary
and executive departments.
Using this word “constitution ” in its broadest sense, as em-
bracing all usages, neither the executive nor the judiciary has
any power, jurisdiction or authority except what is granted
them. -
It will be observed that the executive and judicial depart-
ments occupy a similar position as a depositary of delegated
powers which are occupied by the same departments in Eng-
lish law. There their authority of jurisdiction flowed from the
crown; here it descends from the people." *
SEC. 237. The House of Representatives is the most numer-
ous branch of the legislature and is the direct representative of
the people. Its membership, their qualifications, mode of elec-
tion, term of office, as well as all of their powers, are derived
from and enumerated in the constitution; but the qualification
of electors who choose them are fixed by those whom they rep-
resent. *
Article 1 of that document prescribes that the house shall
be composed of members chosen every second year by the peo-
ple of the several states. -
In this manner this most popular branch is elected directly
by the people of the several states. *
The qualification for membership is that the individual must
have reached the age of twenty-five years and have been for
several years a citizen of the United States, and he must be an
inhabitant of the state from which he shall be chosen.
The number of representatives is fixed by the constitution so
that representation and direct taxation should be apportioned
equally to the people. *
Each state is allowed at least one representative, irrespective
of the number of inhabitants, and the number of representa-
1 Field v. People, 2 Scam. 79; Peo-
ple v. O'Toole, 164 Ill. 344; People v.
EIutchinson, 172 Ill. 486. “It is to be
recollected that constitutional pro-
visions, so far as they relate to the
power of a state legislature, are not
grants of power, but limitations of
power, and that the rule in such
case is that such provisions shall be
strictly construed. Fletcher v. Peck,
6 Cranch, 88; Golden v. Price, 3
Wash. C. C. 313; People v. St. R. R. R.
Co., 15 Wend. 133; Field v. People, 2
Scam. 79; Sawyer v. City of Alton, 3
Scam. 127. * People v. Wilson, 15 Ill.
388–91.
292 UNITED STATES CONGRESS.
[$237.
tives was originally assigned arbitrarily to each of the states
until an enumeration or census might be taken. -
In this provision Delaware and Rhode Island were entitled
to one, New Hampshire and Georgia to three, New Jersey to
four, North Carolina, South Carolina and Connecticut to five,
Maryland and New York to six, Massachusetts and Pennsyl-
vania to eight, and Virginia to ten.
In the same provision it was declared that, after the enumera-
tion should have been taken, no state could have more than
one representative for every thirty thousand inhabitants.
This latter provision has been changed from time to time,
until by act of congress a fixed number of representatives was
assigned to each state by the act of 1891. The house is to be
composed of three hundred and fifty-six members, divided ac-
cording to the act, which assigned a fixed number to each state,
and provided that, in addition to the three hundred and fifty-six
members, there should be added the members allowed to the
new states which should thereafter be admitted."
It is also provided that no representative shall hold, during
the time for which he is elected, any civil office, under the au-
thority of the United States, which shall have been created or the
emoluments whereof shall have been increased during the time;
and no person holding any office under the United States shall
be a member of either house during his continuance in office.”
1 U. S. Stat., tit. II, ch. II, given in
full in McCrary on Elections (4th
ed.), 541. -
2 The states have no power to af-
fect these qualifications by adding
to or modifying them. McCrary on
Elections (4th ed.), § 322 et seq. In
this work, which is recent (1897), will
be found a thorough treatment of
the qualification, election and mode
of contesting the election of officers,
federal and state.
“The constitution of Illinois of
1848 provides: ‘The judges of the
supreme and circuit courts shall not
be eligible to any other office or pub-
lic trust of profit in this state or the
United States during the term for
which they are elected, nor for one
year thereafter.
All votes for either
of them for any elective office (ex-
cept that of judge of the supreme or
circuit courts) given by the general
assembly or the people shall be void.”
“The house of representatives held
that this clause of the constitution
of Illinois, so far as it related to the
election of members of congress, was
void, because in conflict with the
federal constitution, and also because
it was an unauthorized attempt on
the part of the state of Illinois to fix
or to change the qualifications of
representatives in congress. Mr. Mar-
shall and Mr. Trumbull of Illinois
were elected representatives in the
Thirty-fourth congress. They had
previously been elected, respectively,
judge of the supreme and circuit
court of that state for terms which
§ 237.]
TJNITED STATES CONGRESS. 293
In case of vacancy occurring by death, resignation or other-
wise, the governor of the state is authorized and empowered to
issue writs of election to fill such vacancies.
The choice of the members of the house is by election at
specified times, to be fixed either by state legislatures or fixed
and regulated by act of congress."
The states have exclusive jurisdiction of the qualification of
voters for members of congress, except that electors who may
vote for members of the house of representatives must have the
same qualifications requisite for those who are allowed by the
state to vote for the more numerous branch of the state legis-
lature. It follows that the qualifications may vary in the dif-
ferent states.” -
The fourteenth amendment of the constitution does not at-
tempt to require that the states shall make equal and uniform
distribution of the right of suffrage to persons of different color,
rank, condition, education, property, etc., but it provides that
when the right to vote at any election for the choice of elect-
ors for president and vice-president of the United States or rep-
resentative in congress, the executive and judicial officers of the
state, or members of the legislature thereof, is denied to any
male inhabitant above the age of twenty-One years and a citi-
zen of the United States, or his rights are in any way abridged
for rebellion or crime, the basis of representation of that state
shall be reduced in proportion which the number of such male
citizens shall bear to the whole number of male citizens of
twenty-one years of age in such state. The fifteenth amend-
ment limits the power of the states, and in other respects the
power is not unlimited.” -
The Organization of the House of Representatives is by the
choice of a speaker, who shall be one of their number, and other
officers chosen from the members. . .
had not expired. This was held to Corpus Cases, 100 U. S. — (Strauder
be no objection to their holding the
office of representative in congress.
The United States senate adopted
the same rule in Trumbull’s case.”
McCrary on Elec. 246. -
l Congress has implied power to
regulate and protect elections of offi-
cers of the United States. Ex parte
Yarbrough, 110 U. S. 651. See Habeas
v. West Virginia, 303; Virginia v.
Rives, 313; Ex parte Siebold, 371; Ex
parte Clark, 399).
2 Dred Scott v. Sanford, 191+ow. 393;
, Spragins v. Houghton, 2 Scam. 377–
395; Huber v. Reily, 53 Pa. St. 115.
8 Cummings v. Missouri, 4 Wall.
277.
294 TJNITED STATES CONGRESS. [$$ 238–240.
Jºeclusive Powers of the House.—The house is the sole judge
of the election, return and qualification of its members; a ma-
jority constitutes a quorum to do business, but a smaller num-
ber may adjourn from day to day, and may be authorized to
compel the attendance of absent members.
Another Ecclusive Power of the house is the power of im-
peachment of all federal officers subject to that mode of accu-
sation, which, as we shall understand, is the power to prefer
accusations against other officers of the United States. gº
Another important power, which resides exclusively in the
house, is the power or right, Or jurisdiction, to originate bills
for raising revenue; but this does not extend to the power to
pass such laws. They must be passed and concurred in by the
senate and have the Sanction of the president, as in the case of
Ordinary bills. ,
SEC. 238. The Senate.—The same article of the constitution
creates the Senate, which must always consist of two senators
from each state.
SEC. 239. Qualification.— To be a senator one must have at-
tained the age of thirty years, and have been nine years a citi-
Zen of the United States, and must be an inhabitant of the
state by which he is chosen.
SEC. 240. Manner of Election.—The senators are chosen by
the joint action of both branches of the state legislatures.”
Their term of office is six years, and if a vacancy happen
during the recess of the legislature of any state, the executive
thereof may appoint a senator to hold until the next meeting
of the legislature, when it shall be the duty of the legislature
to choose a permanent Senator.
The same restriction as to holding civil and elective offices
obtains against Senators as against the members of the house,
and the power of the states in reference thereto is limited to
the same degree.” - -
The Organization of the Senate differs somewhat from that
of the house, in that the senate is presided over by the vice-
1 In this capacity it has the power 2R. S. U. S., tit. II, ch. 1; McCrary
to declare a state law or a state con- on Elec. (4th ed.), 540.
stitution void. McCrary on Elec., 3 Query, Does the appointment of
§ 326. Senators on commissions violate the
rule.
§ 241.] UNITED STATES CONGRESS. 295
president of the United States, who has a vote only where the
senate is equally divided, when he may cast the deciding ballot.
The senate chooses all their officers, and they also elect a presi-
dent pro tempore, who may act in the absence of the vice-presi-
dent, or who shall be president of the senate in case the vice-
president is called upon to exercise the office of president of
the United States. -
SEC. 241. The Senate as a Court.— The senate has the sole
power to try impeachments in all cases, excepting when the
president of the United States is tried. When the president
of the United States is impeached and his trial is to be held
before the senate, the chief justice of the United States pre-
sides over the trial."
It requires the concurrence of two-thirds of the members
present to convict.
The constitution declares that the president, vice-president
and all civil officers of the United States are liable to this pro-
cess of removal and punishment.
This leaves open for construction the meaning of the words
“civil Officers.”
All officers who hold their office under the national govern-
ment, irrespective of the department, it would seem, would fall
within this designation.”
But it rests with the senate, as a court of last resort, to de-
cide who are included within this designation, and in the case
of Blount it was by the senate decided that senators were not
within the designation of civil officers.”
Army and navy officers are not within the purview of the
law. -
There is some conflict of opinion as to whether the act for
which a party may be impeached, tried and punished must be
a criminal act, made so by the law of the United States. These
matters must rest in opinion until settled by the proper tri-
bunal.”
1 But once has a president been im- 8 Mechem on Pub. Off., sec. 471,
peached, and in that instance, on the citing also State v. Gilmore, 20 Kan,
trial of the impeachment, he was ac- 551, 27 Am. Rep. 189.
quitted by one vote. See Trial of 4 See these opinions stated in
Andrew Johnson, - Mechem on Pub. Off., sec. 472.
*Story on Const. 792.
296 TJNITED STATES CONGRESS. [š 242.
As expressly provided in the constitution, the punishment by
impeachment is no bar to public prosecution."
Jāotent of Punishment is to remove the offender from office,
and disqualify him from holding any other office of profit or
trust under the United States; but the trial and conviction or
acquittal does not relieve the party from the effects of any crime
he may have committed in connection with the transaction
upon which he has been impeached.
Concurrent Powers.-Aside from the cases of ordinary legis-
lation, wherein the executive and both houses of congress may
participate, the senate has certain powers in concurrence with
the executive. These are the treaty-making power, and the ap-
pointment of ambassadors, consuls, judges, and all officers not
by the constitution required to be appointed by the president.
SEC. 242. Organization of Congress.-The same article of
the constitution requires that congress shall assemble on the
first Monday in December of every year, unless they shall ap-
point some other day for meeting.
Neither house, during the session of congress, has the right,
without the consent of the other, to adjourn for more than
three days, nor to any other place than the regular halls of
congress.
Each house must keep a journal of its proceedings, and must
publish this journal, excepting as to matters requiring secrecy,
and every member of either house may be required to vote yea
or nay upon every measure before the house or senate.
The mode of passing laws is specifically pointed out by Sec-
tion 7 of article 1 of the constitution, the full text of which is
found in the Appendix.
1 Mechem on Pub. Off, sec. 473. See also Von Holst's Const. Law, sec. 158.
CEIAPTER XIV.
POWERS OF CONGRESS,
SEC. 243. Scope of the Subject.—The powers of the legisla-
tive department of government may now be investigated. The
subject must be distinguished from the powers of the general
government, that is to say, the aggregate powers of the United
States, with which it is sometimes confounded. The practical
utility of this caution is to prevent expressions of jurists, made
in reference to the powers of a department, being applied to
the broader subject of the powers of the general government.
Arguments against the powers of congress sometimes confine
themselves to an investigation of the powers expressly granted
to the congress, throwing out of view those which depend upon
general powers of congress to carry out by appropriate legis-
lation all of the powers of the government and of each depart-
ment. Many of these powers are not self-executing, but require
legislation to effectuate." -
Under the general designation of constitutional law or con-
stitutional limitations, the subject is most frequently treated.
While the subject is so broad in its extent and the materiał
so abundant and voluminous that its treatment might be ex-
panded into several volumes, the scope of this work limits the
treatment here to the most concise and clearest presentation
of the fundamental principles of the subject.
The opinion may, however, be ventured that if the analysis
is just and the distinctions clear, and the whole is pervaded by
logical and regular method, a broader conception of the subject
may be obtained than by an exhaustive presentation of all that
has been said and decided upon the subject not controlled by
these features. -
It is doubtful whether so clear a conception of the constitu-
tion in its outline and general principles can be attained in this
way as by approaching it by the method which is intended to
pervade this treatise in all its departments, namely, the analyt-
1 United States v. Worrell, 2 Dall, 384.
298 Powers of Congress. [$ 244.
ical method of separating the genus into its species, and in that
manner causing the process of separation and differentiation to
present the principles of each subject.
The principles are comparatively few; their application to
specific cases innumerable and beyond the power of man to
perceive and retain.
It is obvious that constitutional law includes all the rules
that directly or indirectly affect the distribution or exercise of
the powers of the United States, the states and all of the de-
partments of the government, as well as all the guaranties
of individual liberty. It is confined to no department of law.
Its functions are exercised in the law of procedure quite as
much and as frequently as in any other department. None are
privileged from its inhibitions; no one beyond the pale of its
protection." - :
The remarks of Professor Dicey, in reference to this subject
as applied to the English law, may be, with slight changes, ap-
plied to the state of the science in our jurisprudence. He says:
“The true law of the constitution is to be gathered from the
sources whence we collect the laws of the United States in re-
spect to any other topic, and forms as interesting and as dis-
tinct, though not as well explored, a field for legal study or
legal exposition as any which can be found. The subject is one
which has not yet been fully mapped out. Teachers and pupils
alike, therefore, suffer from the inconvenience as they enjoy the
interest of exploring a province of law which has not yet been
reduced to Order.””
This observation is perhaps true to a less extent so far as the
treatment and exploration of American constitutional law is
concerned, but in the matter of order there yet remains much
to be desired.” -
SEC. 244. Development of Constitutional Interpretation.—
The source of information on the subject of constitutional law
in America is not simply the constitution in itself, but the con-
stitution as applied to the daily affairs and transactions of life
1 Dicey on the Const. 22. cism as to order, in this: that by him.
2 Id. the subject is separated from the mu-
*The treatment of Chancellor Kent, nicipal law, whereas it is obviously
while better adapted to a comprehen- and essentially a part of it. He also
sive view of the whole system and gives greater prominence to instances
the parts, is still open to grave criti- than to principles. -
§ 245.] FOWERS OF CONGRESS. 299
since its adoption, and the treatment and comment thereon by
Our jurists.
The constitution of the United States has been in a large
sense a developed constitution. It is frequently remarked that
a written constitution differs from an unwritten one in the fact
that the written constitution is the same tangible, enduring
thing from the beginning throughout all periods of its exist-
ence; but this is true only in a qualified sense.
The constitution per se, in itself, is the same, but the con-
stitution which we see, i. e., the conception and understanding
of the constitution which influences our daily life and affects
our rights and liberties, is the written words of the constitu-
tion, interpreted, construed and applied by the proper tribunals.
The subject directly under treatment is the powers of the
national congress. -
If ever there was a subject marked by struggle and evolved
Out of conflict, the subject of American constitutional law is
such an One. - -
SEC. 245. Antagonistic Method of Interpretation.—The man-
ner in which the questions relating to the power of congress
arise in actual practice is as a question of interpretation or con-
struction of the constitution in relation to some act or right.
Professor Bryce remarks that the history of the United States
is in a large measure a history of arguments which sought to
enlarge or restrict the import of the constitution." -
That is to say, the contention by one school has been to re
strict the powers of the national government by an interpreta-
tion of the constitution which shall resolve all implications
against the power, and leave nothing to the United States gov-
ernment excepting what is expressly granted.”
1 Bryce's Am. Com. 370.
2 The mode of argument seems not
to change as time passes. Mr. Justice
Miller said: “The proposition that it
has no such power is supported by the
old argument, often heard, often re-
peated, and in this court never as-
sented to, that when a question of
the power of congress arises, the ad-
vocate of the power must be able to
place his finger on words which ex-
pressly grant it. The brief of counsel
before us, though directed to the au-
thority of that body (congress) to
pass criminal laws, uses the same
language. Because there is no ex-
press power to provide for prevent-
ing violence exercised on the voter as
a means of controlling his vote, no
such law can be enacted. It destroys
at one blow, in construing the con-
stitution of the United States, the
300 [$ 246.
POWERS OF CONGRESS,
On the other hand have been those who contend that other
powers may be exercised, although there is no express designa-
tion or specific enumeration of them, but they exist by neces-
sary implication from the express powers.
These are the two schools of interpretation and construction
which have existed from the first.
Professor Bryce also notices another source of power than
the implied power claimed for the American congress, which
he states in this manner: “The courts have occasionally gone
even further afield, and have professed to deduce certain pow-
ers of the legislature' from the sovereignty inherent in the na-
tional government.” He mentions in this connection the Legal
Tender Cases, which we have heretofore had occasion to notice
in connection with the power of the national government to
acquire disconnected territory, and which will be the subject
of special examination in this connection.
SEC. 246. Eacpress and Implied Powers.-The extent of the
powers of the United States recognized by its highest judicial
tribunal before the period of the civil war was usually classed
under two distinct heads, namely, express and implied powers;
but after all, these two are in
reality but one and the same,
doctrine universally applied to all
instruments of writing, that what is
ſimplied is as much a part of the in-
strument as what is eacpressed. This
principle, in its application to the
constitution of the United States,
more than to almost any other writ-
ing, is a necessity, by reason of the
inherent inability to put into words
all derivative powers, a difficulty
which the instrument itself recog-
nizes by conferring on congress the
authority to pass all laws necessary
and proper to carry into execution
the powers expressly granted and all
other powers vested in the govern-
ment or any branch of it by the con-
stitution. Art. 1, Sec. 8, cl. 18.” Ex
parte Yarbrough, 110 U. S. 651.
1 The enumerated powers of con-
gress to effectuate objects committed
to it is supplemented by the power and
duty to effectuate the aggregate pow-
ers of the nation. “In the eighth sec-
tion of article 1 it is declared that con-
gress shall have power to make all
laws which shall be necessary and
proper for carrying into execution
the foregoing powers, AND all other
powers vested by this constitution in
the government of the United States,
OR in any department OR office
thereof. As a government it was in-
vested with all the attributes of sov-
ereignty. It is expressly declared in
article VI, that the constitution and
the laws of the United States made
in pursuance thereof, and all treaties
made under the authority of the
|United States, shall be the supreme
law of the land.” Legal Tender
Cases, 12 Wall, 555.
*Bryce's Am. Com, 372.
§ 246.] POWERS OF CONGRESS. 301
although made apparent by different methods—the one by
mere interpretation and the other by construction."
Chief Justice Marshall, who is frequently called the expounder
of the national constitution, and whose just fame must ever
rest on the wise and liberal canons of construction which he
formulated and applied,” never claimed any powers for congress
excepting those granted to it by the constitution. In fact, he
never had occasion to go farther.
Prior to the decision of the case of McCulloch v. Maryland,”
in which Justice Marshall delivered his famous opinion upon
the subject of express and implied powers of the government,
Mr. Justice Story, his associate upon the bench, expressed him-
self at length upon the sources of the powers of congress.
In that opinion 4 Justice Story said: “The constitution of the
United States was ordained and established, not by the states
in their sovereign capacities, but emphatically, as the preamble
of the constitution declares, by “the people of the United States.”
There can be no doubt that it was competent to the people to
invest the general government with all the powers which they
might deem proper and necessary, to extend or restrain these
powers according to their own good pleasure, and to give them
a paramount and supreme authority. As little doubt can there
be that the people had a right to prohibit to the states the ex-
ercise of any powers which were, in their judgment, incom-
1 See Index, titles “Construction,”
“Interpretation.” “We are accus-
tomed to speak for mere convenience
of the express and implied powers
conferred upon congress. But in fact
the auxiliary powers, those necessary
and appropriate to the execution of
other powers singly described, are as
expressly given as is the power to de-
clare war, or to establish uniform
laws on the subject of bankruptcy.
They are not catalogued, no list of
them is made, but they are grouped
in the last clause of section 8 of
the first article, and granted in the
same words in which all other pow-
ers are granted to congress.” Legal
Tender Cases, 12 Wall. 550.
*Great as were his powers of rea-
Soning and statement, these are not
the surest foundation of his fame.
Reasons were supplied him in most
cases by others equally gifted in that
direction who argued before him, or
to whose views he had access; but
the moral qualities of courage of con-
viction, and unswerving adherence
to the only principle by which the na-
tion could live, entitle him to be
called the preserver of the constitu-
tion.
34. Wheat. 316.
4 Martin v. Hunter's Lessee, 1
Wheat. 305. This case involved the
power of the judicial department and
the duty of Congress to effectuate it
by appropriate legislation.
302 FOWERS OF CONGRESS. [$ 247.
patible with the objects of the general compact; to make the
powers of the state governments, in given cases, subordinate to
those of the nation; or to reserve to themselves those sovereign
authorities which they might not choose to delegate to either.
The constitution was not therefore necessarily carved out of
existing state sovereignties, nor a surrender of powers already
existing in state institutions, for the powers of the states depend
upon their own constitutions; and the people of every state had
the right to modify and restrain them, according to their own
views of policy or principle. On the other hand, it is perfectly
clear that the sovereign powers wested ºn the State governments by
their respective constitutions remain unaltered and unimpaired,
eacept so far as they were granted to the government qf the United.
AStates. - -
“These deductions do not rest upon general reasoning, plain
and obvious as they seem to be. They have been positively
recognized by one of the articles in amendment of the consti-
tution, which declares that ‘the powers not delegated to the
United States by the constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people.”
SEC. 247. Implied Powers Are Granted Powers.- “The gov-
ernment, then, of the United States can claim no powers
which are not granted to it by the constitution, and the powers
actually granted must be such as are eaſpressly given, or given by
necessary implication. On the other hand, this instrument,
like every other grant, is to have a reasonable construction
according to the import of its terms; and where a power is ex-
pressly given in general terms, it is not to be restrained to
particular cases, unless that construction grows out of the con-
text expressly or by necessary implication. The words are to
be taken in their natural and obvious sense, and not in a sense
unreasonably restricted or enlarged.
“The constitution unavoidably deals in general language.
It did not suit the purpose of the people, in framing this great
charter of our liberties, to provide for minute specifications of
its powers, or to declare the means by which those powers shall
be carried into execution. It was foreseen that this would be a
perilous and difficult, if not an impracticable, task. The instru-
ment was not intended to provide merely for the exigencies of
a few years, but was to endure through a long lapse of ages,
§ 248.] POWERS OF CONGRESS. 303.
the events of which were locked up in the inscrutable purposes
of Providence. It could not be foreseen what new changes and
modifications of power might be indispensable to effectuate
the general objects of the charter; and restrictions and specifi-
cations which, at the present, might seem salutary, might, in
the end, prove the overthrow of the system itself. Hence its
powers are expressed in general terms, leaving to the legisla-
ture, from time to time, to adopt its own means to effectuate
legitimate objects, and to mould and model the exercise of its
powers as its own wisdom and the public interests should re-
quire.”" - -
SEC. 248. The Character of the Constitution — Marshall's
Wiews.-Three years later than the examination of the nature
and extent of the powers of the United States mentioned in the
last section, wherein Judge Story wrote the opinion, Chief
Justice Marshall delivered his famous opinion in McCulloch v.
JMaryland.”
IHis preliminary remarks throw much light upon the question,
not decided during the life-time of Judge Marshall, and which
will be the subject of the next section, namely, the inherent
powers of the government, cautioning the reader again that
the subject now under discussion is merely the extent of the
actually granted powers. -
Speaking of the nature of the national convention which
framed the constitution, he says: “It was indeed elected by
the state legislatures, but the instrument (the constitution),
when it came from their hands, was a mere proposal without
obligation, or pretensions to it. It was reported to the then
existing congress of the United States, with a request that it
might be submitted to a convention of delegates chosen in each
state by the people thereof, under the recommendation of its
legislature, for their assent and ratification. From these con-
ventions the constitution derives its whole authority. The gov-
ernment proceeds directly from the people in the name of the
people.
“The assent of the states to such action is implied in calling
1 Martin v. Hunter's Lessee, 1 congress to incorporate a bank; the
Wheat. 305, 325–27. power of a state to tax an agency of
*4 Wheat. 314. Two great ques- the United States. See Corporations
tions were involved—the power of and Taxation.
304 POWERS OF CONGRESS. [$$ 249, 250.
the conventions, but the people are at liberty to accept or re-
ject, and their act is final.
“The assent of the states in their corporate capacity is not
required, nor could the state government reject.
“It has been said that the people had already Surrendered all
their powers to the state sovereignties, and had nothing more
to give.” -
He then concludes that it was necessary to establish a na-
tional government; that the people act directly, and that the
nation derives its powers directly from them.
SEC. 249. Eactent of Powers Actually Granted.—He then ap-
proaches the question directly involved. He says the “extent
of the powers actually granted is perpetually arising, and will
probably continue to arise as long as our system shall exist.
“All will admit that the government of the Union, though lim-
ited in its powers, is supreme within its sphere of action."
SEC. 250. True Method of Interpretation.—“Among the enu-
merated powers we do not find that of establishing a bank or
creating a corporation, but there is no phrase in the constitu-
tion which, like the articles of confederation, excludes inci-
dental or other implied powers and which requires that every-
thing granted shall be expressly and minutely described.
“Even the tenth amendment, which was framed for the pur-
pose of quieting the excessive jealousies which had existed, omits
the word “expressly,” and declares that only powers not dele-
gated to the United States nor prohibited to the states are re-
served to the states or to the people; thus leaving the question
whether a particular power, which may become the subject of
contest, has been delegated to one government or prohibited
to the other, to depend on a fair construction of the whole in-
strument.” - -
“In America the powers of sovereignty are divided between
the governments of the Union and those of the states. They
are each sovereign with respect to the objects committed to it.”
Eſe announces the result as follows: “We admit, as all must
admit, that the powers of the government are limited and that
its limits are not to be transcended. But we think the sound
construction of the constitution must allow to the national leg-
1 McCulloch v. Maryland, 4 Wheat. 2 Precisely the position taken in
314–405. Martin v. Hunter's Lessee.
§ 251.] POWERS OF CONGRESS. 305
islature that discretion, with respect to the means by which
the powers it confers are to be carried into execution, which
will enable that body to perform the high duties assigned to
it in a manner most beneficial to the people. Zet the end be
legitimate, let it be within the scope ºf the constitution, and all
means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional.”
SEC. 251. Resume' of These Decisions.—It will be observed
in both of these great decisions, which is true of all others
which preceded them, that powers actually granted must be
such as are expressly given, or given by necessary implication.”
It is clear, therefore, that implied powers, so far as any light
is thrown upon that subject by the opinions of Story and Mar-
shall, are powers implied from the powers actually granted; *
but there is left open by these opinions another avenue of con-
struction and another foundation for powers in the national
government which it would seem could not have escaped the
insight of these great jurists.
In speaking of the constitution Judge Story says: “It was
not carved out of the existing state sovereignties, nor the sur-
render of powers already existing in the state constitutions,
for the powers of the states depended upon their own consti-
tutions.”
Again, that the sovereign powers wested in the state govern-
ments by their respective state constitutions remained unaltered
and unimpaired except so far as they were granted to the gov-
ernment of the United States.
Even in the case to which attention has heretofore been
called, in which Marshall discusses the power to acquire foreign
territory,” he concedes the power to acquire foreign territory,
which Jefferson and others held to be beyond the express pow-
ers of the nation, to be in them,--that is, by implication; the
chief justice there saying: “The constitution confers absolutely
1 McCulloch v. Maryland, 4 Wheat, distinction between inherent and im-
314, plied powers.
*Amte, p. 101. 4 Am. Ins. Co. v. Canter, 1 Pet. 511.
*This term is used intentionally, The question of power of acquiring
being the one used by Story and Mar- was not before him, but the question
shall. It marks more sharply the related to the mode of governing.
20
306 POWERS OF CONGRESS. [$$ 252, 253.
on the government of the Union the powers of making war
and of making treaties, and consequently that the government
possesses power of acquiring territory either by conquest or by
treaty.”
It seems almost obvious that in many circumstances even the
construction of the word “necessary” given by the chief justice
in McCulloch v. Maryland' cannot be tortured into the neces-
sity for taking and holding disconnected territory;” and that
the better and the safer rule, and the rule more consonant with
logic, is the one heretofore advanced, which will be further no-
ticed in the next section.
SEC. 252. Inherent Powers of the Nation.—While, as has
been observed in the last section, there is nothing in the opin-
ions of Marshall or Story or any other member of the Supreme
court before the civil war which in terms speak of any other
powers in the United States government than those which are
actually granted by the constitution, it is both from the nature.
of the circumstances and from the language used that these
jurists recognized that new questions would constantly arise,
and that they were to be settled by the construction of the
whole constitution in connection with the facts and circum-
stances surrounding its adoption, its development, and the
sphere of sovereignty within which the particular act in ques-
tion might belong.
The language of Justice Story suggests at least that not all
of the powers wested in the nation were carved out of the powers
belonging to the states; and it certainly leaves the door open
for other applications of the same principle of construction,
and for the existence of all other powers ordinarily attributed to
nations and which a state could under no circumstances exer-
cise.
SEC. 253. Principle of Inherent Powers.-If an object sought
to be accomplished is an object which a state under no cir-
cumstances has the power to accomplish, and if the means
adopted do not invade the exclusive powers of the states, nor
restrict the liberties of the citizen guarantied in the constitu-
tion, and is the exercise of a power ordinarily exercised by
14. Wheat. 316. the decision of Am. etc. Ins. Co. v.
*This seems to have been Judge Canter, 1 Pet. 531. Amte, p. 222. See
Story's opinion long subsequent to ante, 224, note, and next section.
§ 253.] POWERS OF CONGRESS. 307
nations, has not the nation the inherent power to accomplish
the object vested in it by the very fact of its establishment 2
The functions of an author in this regard, while they do not
preclude him from the expression of personal opinions upon open
questions, are more properly and usefully exercised by stating
the views of jurists whose opinions are acknowledged to be of
Weight, and the decisions of the proper tribunals upon whom
are conferred the power of expressing authoritative opinions.
That our courts have affirmed the existence of a power the
Source of which is not found in the grants expressly enumerated
in the constitution seems clear.
So Mr. Bryce notices that our courts have occasionally gone
even further afield (than in the cases noticed), and have pro-
fessed to deduce certain powers of the legislature (congress),from
the sovereignty inherent in the national government."
In its last decision on the Legal Tender Cases a majority of
the court seem to have placed the decision on this ground, al-
though special reference is made to the power of congress to
borrow money. -
It has passed beyond the domain of controversy that it is
not necessary, in order to sustain a power, that the specific thing
aimed at should be expressly named in the constitution.
Justice Miller very aptly says that such a proposition, al-
though often asserted, often argued, often repeated, has in the
supreme court of the United States never been assented to; but
he goes no further in that connection than to say that what is
implied from what is expressed is as much a part of the instru-
ment as what is expressed, reaching in that connection the
same bounds before him reached by Story and Marshall.”
There is, however, a significant expression in the constitution
which is mentioned by Justice Miller in his opinion in that
CàS62. \
The last clause of article 1 confers upon congress the power
“to make all laws necessary and proper for carrying into exe-
cution first the foregoing powers (granted to congress), and all
powers wested by this constitution in the government of the
United States or in any department or office thereof.”
1 The distinction involved in this 2 Ex parte Yarborough, 110 U. S.
expression is important, and hence 651–58.
its reiteration.
308 - Powers or congress. [$254.
The language of the clause is broad and sweeping. It con-
fers the power upon congress to make laws necessary to effect-
uate all powers; not only such as are in that article before
enumerated as being conferred upon congress, but all powers
vested by this constitution in the government (the whole gov-
ernment being obviously intended), or in any department or
officer thereof. e
It also recognizes that the four corners of the document
may all be explored and all referred to in deducing a power or
construing a law, and the preamble of the constitution is quite
as much a part of the document as any other portion of it, and
the character of the new body politic an important element in
the construction.
SEC. 254. Inherent Powers in the Government Create Re-
sulting Powers in Congress.--The doctrine of inherent powers
wested in the government differs in terms materially from the
question as to proper and appropriate means of exercising powers
actually conferred by the grant or grants of the constitution to a
department; and all grants are of this nature. It proceeds upon
the idea that by the very act of creating a new and national
government there are inherent powers which may be vested in
the national government, or the nation, independently of the
grants of the constitution, but inherently a part of it.
The law of nations recognizes the right and the obligation of
a nation to preserve itself and its members.
The same law recognizes the national obligation, duty and
rights which the dictates of humanity teach, and which sover-
eigns have acted upon since governments were instituted. Are
all such excluded by Our constitution, and is this nation pro-
hibited from exercising such rights or performing such duties?
This is a question of international law, but of municipal law as
well. The right of intervention on grounds of humanity, or
because of natural ties of race or religion, has been frequently
asserted and exercised."
The preamble of the constitution states that one of the objects
is to provide for the common defense and promote the general
welfare. ---
“The same principles which evince the right of a nation to
1 Wheaton's Internat. Law (Dana's ed.), §§ 63–69. See 1 Wilson's Works, 133.
§ 255.] IPOWERS OF CONGRESS. 3.09.
do everything which it lawfully may for the preservation of
itself and of its members evinces its right, also, to avoid and
prevent, as much as it lawfully may, everything which would
load it with injuries, or threaten it with danger.””
It is obvious that a nation which is to exist in perpetuity may
look forward and remove all dangers and menaces present and
future threatening itself and posterity; and so the preamble
mentions “ourselves and Our posterity.”
In connection with the power to acquire territory, attention
was called to the views of Mr. Justice Story, as expressed in
his Commentary on the Constitution, where he says: “The
friends of the measure are driven to the adoption of the doc-
trine that the right to acquire territory was incidental to na-
tional sovereignty; that it was a resulting power growing neces-
sarily out of the aggregate powers confided by the federal
constitution.””
This opinion of the commentator throws a light upon his
opinion as a judge, and may explain the caution with which he
left open the door of construction in the case before referred to.
SEC. 255. National Objects Not Derived from the States.”—
Mr. Justice Wilson, speaking to the convention of Pennsyl-
vania, then sitting in deliberation upon the adoption or rejec-
tion of the constitution, announced this principle of the partition
of power between the federal and the state governments: “It
was easy to discover a proper and satisfactory principle on the
subject. Whatever object of government is confined in its
operation and effects within the bounds of a particular state
should be considered as belonging to the government of the
United States. But, though this principle be sound and satis-
factory, its application to particular cases would be accompa-
nied with much difficulty.”* f
Like many other constitutional questions, principles ante-
dating the constitution may be of the utmost importance as
throwing light upon the nature and meaning of that instru-
ment. -
Justice Wilson, speaking of the old confederacy, and speak-
11 Wilson's Works, 141. and ultimate source of sovereignty.
2 Story on the Const., sec. 1280; Ante, § 248. -
ante, p. 224. 41 Wilson's Works, 533.
8 The states are not the original
310 &T)
POWERS OF CONGRESS. [$ 256.
ing before the adoption of the present constitution, said of the
United States: “Though it in congress assembled derive from the
particular states no power, jurisdiction or right which is not
expressly' delegated by the confederation, it does not thence
follow that the United States in congress have no other powers,
jurisdiction or rights than those delegated by the particular
States.
“The United States have general rights, general powers and
general obligations, not derived from any particular states, nor
from all of the particular states taken separately; but resulting
from the union of the whole.
“To many purposes the United States are to be considered
as one undivided, independent nation, and as possessed of all
the rights and powers and properties by the law of nations in-
cident to such.
“Whenever an object occurs to the direction of which no
particular state is competent, the management of it must, of
necessity, belong to the United States in congress assembled.
There are many objects of this extended nature. The purchase,
the sale, the defense, and the government of lands and coun-
tries, not within any state, are all included under this descrip-
tion. An institution for circulating paper, and establishing its
credit over the whole United States, is naturally ranged in the
same class.””
Chancellor Kent, discussing the power of the United States
to incorporate a bank, and commenting upon the case of Mo-
Culloch v. Maryland,” states that it is worthy of notice that the
power of congress to establish a national bank seems not at
the time to have been questioned. The constitutionality and
validity of this ordinance were ably enforced by Judge Wilson,
referring to the language quoted," and by not speaking in dis-
sent he tacitly at least approves the proposition.
SEC. 256. The Doctrine Established — Legal Tender Cases.—
The final conclusion reached in the Legal Tender Cases is ac-
complished by recognizing the inherent power in the general
1 The clause in the articles of Con- 21 Wilson's Works, 557–559.
federation used the word “expressly,” 84 Wheat. 316.
while that word is omitted in the 41 Wilson's Works, –.
tenth amendment pertaining to the
same subject.
§ 256.] POWERS OF CONGRESS. 311
government, and the duty of congress to adopt all proper means
necessary to accomplish that object.
Mr. Justice Strong, delivering the opinion of the court, says:
“It is impossible to know what those non-enumerated powers
are, and what is their nature and extent, without considering
the purposes they were intended to subserve. Those purposes,
it must be noted, reach beyond the mere execution of all pow-
ers definitely intrusted to congress and mentioned in detail.
They embrace the execution of all other powers wested by the
constitution in the government of the United States, or in any
department or officer thereof. It certainly was intended to
confer upon the government the power of self-preservation.
Said Chief Justice Marshall, in Cohens v. Bank ºf Virginia;'
“America has chosen to be, in many respects and to many pur-
poses, a nation, and for all these purposes her government is
complete; * for all these objects it is supreme. It can then,
in effecting these objects, legitimately control all individuals
or governments within the American territory.” He added, in
the same case: ‘A constitution is framed for ages to come, and
is designed to approach immortality as near as mortality can
approach it.” . That would appear, then, to be a most
unreasonable construction of the constitution which denies to
the government created by it the right to employ freely every
means, not prohibited, necessary for its preservation, and for
the fulfillment of its acknowledged duties. Such a right, we
hold, was given by the last clause of the eighth section of the
first article. The means or instrumentalities referred to in
that clause and authorized are not enumerated or defined. In
16 Wheat. 414.
* This is precisely the line of argu-
Iment pursued by Jay and Wilson in
Chisholm. v. Georgia, 2 Dall, 416. Of
this decision Cooley says, in his dis-
course on the federal supreme court:
“We shall not pause to show — what
is self-evident — that the Union could
scarcely have had a valuable exist-
ence had it been judicially deter-
mined that the powers of sovereignty
were in the states or in the people of
the states severally. Neither is it
important to show that the doctrine
of an indissoluble Union is at least
in its elements embraced. The quali-
fied sovereignty, state and national,
the subordination of the state to the
nation, the position of the citizen,
are all exhibited. It must logically
follow that a nation as a sovereignty
is possessed of all those powers of in-
dependent action and Self-preserva-
tion which the successors of Jay sub-
sequently demonstrated were by im-
plication Conferred upon it.” Const.
IHist. in Am. Law, p. 49.
312 Powers OF CONGRESS. [$ 256.
the nature of things, enumeration and specification were im-
possible. But they were left to the discretion of congress, sub-
ject only to the restrictions that they be not prohibited, and
be necessary and proper for carrying into execution the enumer-
ated powers given to congress, and all other powers wested in
the government of the United States, or in any department or
officer thereof. -
“And here it is to be observed, it is not indispensable to the
existence of any power claimed for the federal government
that it can be found specified in the words of the constitution,
or clearly and directly traceable to some one of the specified
powers. Its existence may be deduced fairly from more than
one of the substantive powers expressly defined, or from them
all combined. It is allowable to group together any number
of them, and infer from them all that the power claimed has
been conferred.” ".
He argues further: that important powers were understood
by the people to be vested incidentally is shown by the clamor
of the people for amendments restricting the exercise of implied
powers, and argued that “they tend to show that, in the judg-
ment of those who adopted the constitution, there were powers
created by it, neither expressly specified nor deducible from any
one specified power, or ancillary to it alone, but which grew out
of the aggregate of powers conferred upon the government, or
out of the sovereignty instituted.” .
He notices that these powers are called by Story, in his Com-
mentaries, “resulting powers, arising from the aggregate pow-
ers of the government.”
The conclusion of Mr. Justice Strong evidently is that the
inquiry is as to the existence of a power over the objects of gov-
ernment, and the nature of these objects, as to whether they are
of such character as relate to national affairs or those which be-
long properly to the state.”
1 Legal Tender Cases, 12 Wall. 457,
533, 534.
2 Id. 535.
3 Id. 457–535.
*Justice Strong says: “We are ac-
customed to speak for mere conven-
ience of the express and implied
powers Conferred upon congress. But
in fact the auxiliary powers, those
necessary and appropriate to the exe-
cution of other powers singly de-
scribed, are as expressly given as is
the power to declare war, or to estab-
lish uniform laws on the subject,
of bankruptcy. They are not cata-
logued, no list of them is made, but,
they are grouped in the last clause:
of section 8 of the first article, and
§ 257.] POWERS OF CONGRESS. 313.
SEC. 257. The Doctrine Clearly Stated.—Justice Bradley's
opinion in the same case is still more specific upon the existence
of inherent powers. He says: “The constitution of the United
States established a government and not a league, compact or
partnership. It was constituted by the people. It is called a
government. In the eighth section of article I it is declared
that congress shall have power to make all laws which shall
be necessary and proper for carrying into execution the fore-
going powers and all other powers wested by this constitution
in the government of the United States (the italics here used are
his), or in any department or office thereof. As a government
it was invested with all the attributes of sovereignty. It is
expressly declared in article VI that the constitution, and the
laws of the United States made in pursuance thereof, and all
treaties made under the authority of the United States, shall be
the supreme law of the land. -
“The United States is not only a government, but it is a na-
tional government, and the only government in this country
that has the character of nationality. It is invested with power
over all the foreign relations of the country—war, peace, and
negotiations and intercourse with other nations,— all which
are forbidden to the state governments.”
It has jurisdiction over all those general subjects (objects)
of legislation and sovereignty which affect the interest of the
whole people equally and alike, which subjects are expressly
or impliedly prohibited to the state governments; and he adds:
“Such being the character of the general government, it seems
to be a self-evident proposition that it is invested with all those
inherent and implied powers which, at the time of adopting
the constitution, were generally considered to belong to every
government as such, and as being essential to the exercise of
its functions. If this proposition be not true, it certainly is
true that the government of the United States has express au-
thority, in the clause last quoted, to make all such laws (usually
regarded as inherent and implied) as may be necessary and
proper for carrying on the government as constituted, and win-
dicating its authority and existence.” - -
granted in the same words in which 1 Tegal Tender Cases, 12 Wall, 457–
all other powers are granted to con- 555. -
gress.” Legal Tender Cases, 12 Wall. 2 Ibid.
457–550. -
314 FOWERS OF CONGRESS. [š 258.
SEC. 258. Resume' of the Question.—From the decisions and
comments presented, it may be gathered that there have been
recognized but two different classes of powers, namely, ea press
and inherent powers. Those powers which are frequently called
implied powers, but which are held to arise by necessary im-
plication from the express powers, are in reality but express
powers, and were so designated by both Chief Justice Marshall
and Justice Story, and by the judges in the Legal Tender Cases.
The formula that congress possesses enumerated powers, and
only such powers as are enumerated, finds no justification in
the constitution itself; neither is there any evidence that the
framers of the constitution intended to enumerate all the
powers.
Mr. Paschal, in his Annotated Constitution, says that the di-
vision which we commonly see of the articles of the constitu-
tion, and their designation and separation by Arabic numbers,
as in this case into eighteen clauses, is a work of the printers,
and is not shown in the original.
The practice of speaking of the powers of congress as enu-
merated cannot be abandoned after so long use, but it may be
borne in mind that “enumeration ” is a term invented by the
constructionist and not furnished by the makers of the consti-
tution.
One might almost say that the enumeration was of the ob-
jects as well as of the means.
The inherent powers, and perhaps it may be said the natural
duties and obligations, of the people as a nation are as thor-
oughly established and well recognized to-day as was that which
was called the “implied powers” prior to the civil war.
CHAPTER XV.
THE NATIONAT, REVENUE,
SEC. 259. Sources of Power.—Chief among the causes for
the failure of the old confederacy was the want of power of the
general congress to provide the nation with an adequate revenue
for the maintenance and the support of the government.
During the Revolutionary war this want was felt, and it was
Only by individual contribution and effort that the continental
army was sustained.
After the establishment of the confederation, the ingenuity
of Robert Morris devised a plan for national revenue, which, in
connection with the loyalty of the people, supplied in a meagre
way the wants of the nation; but when the outward stress of
war diminished the common interest and local affairs began to
be prominent, the inherent weakness of the bond between the
parties to the old articles of confederation became too plain and
apparent to be overlooked.
What mattered it that there was a shadow of a nation with
the same name which now designates the national union ?
The substance and personality was lacking. There was no
national government. There was a mere compact, empowering
those intrusted with its supervision with the right to recom-
mend measures to the states." ->
Naturally, then, the first concern of the government, after
establishing a firm bond of perpetual union, was to supply the
material things without which no nation can endure.
The preamble of the constitution recites that in order to form
a more perfect union, establish justice, insure domestic tran-
quillity, provide for the common defense, promote the general
welfare and thereby “secure, the blessings of liberty to our-
selves and our posterity, we do ordain,” etc.
Clause 2 of section 8 of article I, relating to the means of
providing a revenue, says that to pay the debts (obviously the
1 See Income Tax Case, 157 U. S. 429, and 158 U. S. 601. .
316 - THE NATIONAL REVENUE. [šš 260, 261.
debts already incurred), to provide for the common defense
and the general welfare of the United States, congress shall
have power to lay and collect taxes, duties, imposts and excises.
It will not escape the observant reader that the words “pro-
vide for the common defense and general welfare” are a repeti-
tion of the great object of the constitution left unaccomplished,
for, at the time of the adoption of the constitution and by its
adoption, a more perfect and indissoluble union was created.
Justice was established or built up.
SEC. 260. Limitation on the Power.— The last clause of this
second clause constitutes a limitation or direction upon the
mode: “but all duties, imposts and excises shall be uniform
throughout the United States.”
Other inhibitions or regulations appear in other parts of the
constitution.
For example, in the third paragraph of section 1 is a require-
ment “that representation and direct taxes shall be apportioned
among the people according to their respective numbers.”
In the fourth clause of section 9 of this article it is provided
that “no capitation, or other direct tax shall be laid, unless in
proportion to the census or enumeration hereinbefore directed
to be taken.”
In the fifth article it is provided that “no tax or duty shall
be laid on articles exported from any state.”
SEC. 261. Nature of the Power to Taz.—The words used in
the constitution were not new words, devised and invented for
a new purpose, but were words in common use, and were pre-
sumably used in no new sense.
No new interpretation or meaning is to be given to them
unless on account of the changed circumstances of the people
who were making use of them.
It is important then to inquire the meaning of these terms
in the jurisprudence out of which the people of the new govern-
ment had recently emerged.
Taa’ation Defined.—There is no essential difference or con-
troversy in relation to the meaning of the word “taxation,” al-
though there is some distinction in the methods of expressing it.
“Taxes are a public imposition levied by the authority of
the government, for the purpose of carrying on the government
1 See art. VI, § 1.
§ 262.] THE NATIONAL REVENUE. 317
in all its machinery and operations.” This is the language of
the court in Loan Association v. Topeka."
Again another says: “Taxes are burdens or charges imposed
by law upon persons or property for public purposes or to ac-
complish some governmental end—the regular, uniform and
equal contributions which the people are required to make for
the support of the government.”
Judge Cooley says the word “tawation in its most enlarged
senses embraces all the regular impositions made by govern-
Iment upon the person, property, privileges, occupations and
enjoyments of the people for the purpose of raising public rev-
enue.”? *
None of these definitions throw any light upon the true dis-
tinction between taxation and other public imposition and
burdens, and in truth they tend rather to obscure the true con-
ception and understanding of the term.
It is also frequently said that taxation is the exercise of the
sovereign power; but inasmuch as every act of government is
but the exercise of some part of the sovereignty delegated to
some branch of the government, it is difficult to understand
how such a general explanation elucidates the subject.
SEC. 262. Taa’ation Distinguished from Commercial Regula-
tion.*—If we turn to the English constitution we find that
taxation is not among the powers or prerogatives which the
personal sovereign of England could exercise. As arbiter of
commerce, he had, for the especial purpose and object of regu-
lating commerce, the power to impose excises and impositions
on the subjects of commerce.
Thus, in Campbell v. Hall,” decided in 1774, during the reign
of George III., and during the time of our Revolution, it is
brought Out in the argument and in the decision, in speaking
of the treaty by which England obtained Grenada from the
Trench, the seventh article of which required that the inhab-
itants should pay no other duties than they before paid to the
French king, that the capitation tax should be paid out of the
120 Wall. 655. 3 Cooley's Prin. Const. Law, 55. See
* 25 Am. & Eng. Ency, of Law, 11, his “Taxation.”
12. Taxes need not be regular; they 4 See the Treatment of Commerce.
may be occasional. The word is out 5 Cow. Rep. 206. -
of place.
3.18 TEIE NATIONAL REVENUE. [$ 262.
king's demesne. A proclamation of the king, dated October 7,
1763, stated that for the government of Grenada we have
thought fit to declare by our letters patent that they shall sum-
mon and call general assemblies in the same manner as is used
and directed in the provinces of America, and we have also
given power to the said governors, with the consent of our said
councils and the representatives of the people, to make laws
agreeable to the laws of the constitution of England. Then
is provided the following regulations of commerce: “Whereas,
in the Barbadoes and in the British Leeward Islands, there was
a duty of four and a half per cent. upon all sugars exported;
and whereas, it is reasonable and expedient, and of importance
to our other sugar islands, that the like duty should take place
in our said island of Grenada; ” and then proceeds: “We have
thought fit, and our royal will and pleasure is, and we do hereby,
by virtue of our prerogative royal, order, direct and appoint, that
from and after the 29th day of September next ensuing the
date of these presents, a duty or impost of four and a half per
cent. in specie shall be raised and paid to us, our heirs and suc-
cessors, upon all dead commodities, the growth and produce of
our said island of Grenada, that shall be shipped from the same,
in lieu of all customs and import duties.”"
It is everywhere admitted and nowhere contradicted, that
the English crown, though he was the personal sovereign to
whom allegiance was due, had not the power of general taxa-
tion, but that taxation as such must come from the representa-
tives of the people assembled in the great congress of the
nation, namely, parliament.”
In Johnson v. McIntosh,” Chief Justice Marshall remarked
that “since the expulsion of the Stuart family the power of
imposing taxes by proclamation has never been claimed as a
branch of the regal prerogative.”
Upon this principle, and having in view the distinction be-
tween a tariff for the regulation of commerce and general tax-
ation, the power of parliament to tax the colonies, when there
was in parliament no representative of the colonies, was denied,
and the assertion of such a power by the declaratory act of
1 Campbell v. Hall, Cow. Rep. 206. 2 See Pollock v. Farmers' L. & T.
This was a purely commercial regula- Co., 157 U. S. 557.
tion. 38 Wheat, 598.
§ 263.] THE NATIONAL REVENUE. 3.19.
wº
parliament, combining with other reasons, caused the colonists
to declare that the crown had abdicated government here by
combining and confederating with others to subject us to a
jurisdiction unknown to the British constitution.
SEC. 263. Nature of Taacation.— Taxation was regarded in
IEnglish law as a voluntary contribution of the people, made
through their representatives assembled in parliament, for the
maintenance and support of the government and for public
improvements, as distinguished from providing the crown with
a revenue; and so in America, there is no occasion to change
the phrase. No part of parliament had any share in these
grants, so that they did not partake of the nature of sovereign
legislation. In our constitution the origin of all revenue bills
is in the house. -
Taxation is more properly defined as the contribution of the
people, which by the constitution established by them may be
ascertained and imposed upon every individual and his prop-
erty for public purposes.
“A tax is understood to be a charge, a pecuniary burden,
for the support of the government. Of all burdens imposed
upon mankind that of grinding taxation is the most cruel. It
is not taxation that the government should take from One the
profits and gains of another. That is taxation which compels
one to pay for the support of the government from his own
gains and of his own property.”” &
There is nothing which can be the subject of property but
what may be the subject of taxation; and according to the prin-
ciples of government, the individual may be compelled to pay a
personal contribution, which is commonly called a poll-tax; and
1 Chief Justice Bradley says: “Eng-
land has no written constitution, it
is true; but it has an unwritten. One,
resting in the acknowledged, and fre-
Quently declared, privileges of parlia-
ment and the people, to violate which
in any material respect would pro-
duce a revolution in an hour. A vio-
lation of one of the fundamental
principles of that constitution in the
colonies, namely, the principle that
recognizes the property of the people
as their own, and which, therefore,
regards all taxes for the Support of
government as gifts of the people
through their representatives, and
regards taxation without representa-
tion as subversive of free govern-
ment, was the origin. Of Our Own rev-
olution.” Slaughter-house Cases, 16
Wall. 36–115,
2 United States v. Railroad Co., 17
"Wall. 326.
320 THE NATIONAL REVENUE. [$$264, 265.
in addition to these there may be restrictions upon and prohibi-
tions against business." 4.
That the object for which a tax must be imposed shall be a
public one is fundamental, never contradicted; but the question
as to what is a public purpose is frequently a question of doubt
and difficulty.
SEC. 264. Who May be Tazed.—Upon principles of general
national law, the government undertakes to protect all persons,
whether citizens or aliens, temporarily or permanently within
the realm; and it is not only just, but recognized, that all such
persons and all of their property shall be subject to the same
burdens and impositions which might be imposed upon the like
property of a citizen.” -
The power of the general government takes the place of the
sovereign power of England as to all persons and all property
within the dominion of the United States and beyond a state;
and upon the same principle that the English crown had the
right to tax conquered territories, so the inhabitants of our
territories and their property are subject to the imposition of
taxes by the general government.” s
It is not necessary, however, that the power which congress
has to exercise its right of taxation in the territories should be
exercised merely because the same power is exercised over the
people of Or property in a state, or that it should be essential
to an imposition upon the states that a similar One should be
made, or made upon similar principles, in the territories.*
SEC. 265. Congress Cannot Taac State Agencies.—The states
are within their respective spheres equally necessary, equally
indestructible, equally instruments and agencies of the govern-
ment established by the people, as the United States, and it
follows that the United States cannot tax state agencies or
property of the state in use for purposes of the state govern-
ment.”
I Head Money Cases, 112 U. S. 580.
$ee also Police Power and Commerce.
*Witherspoon v. Duncan, 4 Wall.
210; Cooley on Taxation, p. 15.
8 Loughborough v. Blake, 5 Wheat.
315–317.
*Loughborough v. Blake, 5 Wheat.
5 Collector v. Day, 11 Wall. 113. See
also United States v. Railroad Co., 17
Wall. 326; Cooley's Const. Lim. (6th
ed.) 592; State v. Atkins, 1 Abb. (U.
S.) 22; 10 Fed. Cas. 241; 35 Ga. 315;
Pollock v. Farmers’ Loan & Trust Co.,
157 U. S. 429, and 158 U. S. 601.
315.
§ 266.] THE NATIONAL REVENUE. 321
There is no dispute upon the general rule of law applicable
to this subject.
The power of taxation by the federal government is limited
to impositions and burdens upon those persons within its juris-
diction and Over which it has control.
It may not, under the guise of taxation, affect or destroy the
instruments or agencies of the state governments, equal parts
of the great system of law established by the people of the
United States. *
The right of the states to administer their own affairs in
their own manner, through their own agencies, general and
local, is established by an unbroken line of decisions and by
the practice of the courts.
It necessarily carries with it an exemption of these agencies
and instruments from the taxing power of the federal govern-
ment, on the principle announced in McCulloch v. Maryland,"
that the power to tax is a power to destroy, and that it neces-
sarily is a discretionary power. It then follows that if the power
is admitted to exist, it may be used as an instrument to destroy
and oppress; hence, the reciprocal principle is established, that
the states may not tax federal agencies, nor the United States
the agencies of the state governments.
A municipal corporation, or a railroad owned and operated
by a state, are within this rule.”
The courts of a state cannot be impeded or obstructed by
an act of congress which declares void contracts not stamped
for the purpose of imposing internal revenue.”
Nor may state officials be embarrassed by a tax on their
salaries.*
SEC. 266. Eacports Cannot be Tazed — No Excise, Taa’ or
Duty Shall be Laid on Articles JEa:ported from Amy State.—
This provision of the constitution prohibits entirely anything
in the nature of tariff on exports or any levy or imposition
upon them for the purpose of regulating commerce or raising
a revenue.”
14. Wheat. 316. v. Holway, 101 Mass. 243; Sayles v.
2 United States v. Railroad Co., 17 Davis, 22 Wis. 225.
Wall. 322; ante, p. 320, note 5. 4 Collector v. Day, 11 Wall. 113.
* Bowen v. Byrne, 55 Ill. 467; Green 5 Pollock v. Farmers’ Loan & Trust,
1 Co., 157 U. S. 429.
2
322 TEIB NATIONAL REVENUE. [$ 266.
It does not, however, prevent the collection of internal rev-
enue upon property not for export, nor the imposition upon.
property of the charges necessary for the purpose of identifying
and segregating these goods which are to be exported from
a state from other articles of the same kind by the ordinary
processes of inspection and affixing marks or stamps thereto.
Thus, by the acts of congress of 1868 and 1872, an excise tax of
thirty-two cents per pound was imposed on all manufactured
tobacco, except smoking tobacco, on which the tax was six-
teen cents per pound, with an exception in favor of tobacco
which was intended for export, and as to such tobacco it was
provided that it might be removed without the payment of the
tax, irrespective of the size of the packages; but it was enacted
that all tobacco and snuff intended for export, before being
moved from the manufactory, shall have affixed to each pack-
age an engraved stamp indicative of such intention, and for
the expense attending the providing and affixing such stamps,
twenty-five cents for each package so stamped should be paid
to the collector on making the entry for such transportation."
It was contended by the owners of the tobacco that this reg-
ulation was a violation of the constitutional provision against
imposing any tax or duty on articles to be exported.
The court, however, held that such was not the object or
effect, but the regulation was merely a necessary incident to
the proper gollection of the taxes upon the property properly
taxed, and the only means by which fraud could be prevented
in that regard.
Ten years later the same question arose in reference to the
same law, and, in addition to the reasons above given, the
court noticed that goods intended for exportation to another
state are liable to taxation as a part of the general mass of
property of the state of their origin until actually started.
It was held in this case that the regulation was only a
reasonable one, to ascertain and separate the goods intended
for export from those not so intended; indeed, the regulation
amounts to a special indulgence granted to the owner of the
article, and only requires their declaration of an intention to
appropriate such goods to the purposes of foreign exportation.*
1 Pace v. Burgess, 92 U. S. 372. 2 Turpin v. Burgess, 117 U. S. 504.
§§ 267, 268.] THE NATIONAL REVENUE. 323
SEC. 267. Methods of Taxation.— The methods of taxation
are designated in a way little calculated to define the char-
acter and limitations of the power. For example, the only
method specifically spoken of is direct taxation." This occurs
in the third section of article 1, providing that representatives
and direct taxes shall be apportioned in the several states.
And again in the fourth clause of section 9 of the same arti-
cle, which provides that no capitation” or other direct tax shall
be laid unless in proportion to the census or enumeration here-
inbefore directed to be taken.
The genus taa’ation is spoken of, and one species which was
at that time recognized was enumerated, namely, direct taxa-
tion.
In connection with these are designated duties, imposts and
excises, together with a capitation tax, with the purposes for
which any and all of these may be resorted to.
SEC. 268. Revenues of the English Crown.— By referring to
Blackstone's Commentaries,” in which the learned commen-
tator gives a concise exposition of the king's revenues, it will
be seen that the Ordinary revenues of the king originally de-
pended entirely upon the tie of personal allegiance and its
incidents as understood in connection with the feudal system,
introduced by William the Norman, and within these fell none
1 Hamilton is quoted as saying, in
regard to the distinction between di-
rect and indirect taxes: “What is
the distinction between direct and
indirect taxes? It is a matter of re-
gret that terms so uncertain and
vague in so important a point are to
be found in the constitution. We
shall seek in vain for any antecedent
settled legal meaning to the respect-
ive terms. There is none. We
shall be as much at a loss to find
any disposition of either which can
satisfactorily determine the point.”
There being many carriages in some
of the states and very few in others,
he points out the preposterous conse-
quences if such a tax be laid and
collected on the principle of appor-
tionment instead of the rule of uni-
formity. He insists that if the tax
there in question was a direct tax,
So would be a tax on ships according
to their tonnage. He suggests that
the boundary line between direct
and indirect taxes be settled by a
“species of arbitration,” and that di-
rect taxes be held to be only “Capi-
tation or poll taxes, and taxes on
lands and buildings, and general as-
sessments, whether on the whole
property of individuals or on their
whole real or personal estate.” All
else must, of necessity, be consid-
ered as indirect taxes. Springer v.
TJnited States, 102 U. S. 586.
2 Here capitation tax is used as a
generic term. 157 U. S. 569.
3 Vol. 1, ch. 8.
£24. THE NATIONAL REVENUE. [$ 269.
of the means of raising the revenue which are ordinarily re-
sorted to in the United States.
The King’s Eletraordinary Revenue.—In proportion as the
exactions of the king as a feudal sovereign were limited and
destroyed, so the people supplied the government with a new
means of providing a revenue.
It was still at the time of Blackstone called the “king's rev-
enue,” but the designation was his extraordinary revenue.
The learned commentator congratulates the people on the
destruction of those arbitrary exactions which fell with no uni-
formity, and bore heavily upon some and lightly upon others,
at the same time stating it was not to be wished that there
should be an abolition of taxes.
He then makes the following just observation upon the idea
of government and true basis of magistracy, which he says will
be found to consist in this: that some few men are deputed by
many others to preside over public affairs, so that individuals
may the better be enabled to attend to their private concerns;
it is necessary that those individuals should be bound to con-
tribute a portion of their private gains in order to support that
government and reward that magistracy which protects them.
in the enjoyment of their respective properties. But the things
to be aimed at are wisdom and moderation, not only in grant-
àng, but also in the method of raising the necessary supplies;
by contriving to do both in such a manner as may be most
conductive to the national Welfare, and at the same time most
consistent with economy and the liberty of the subject, who,
when properly taxed, contributes only, as was before observed,
some part of his property, in order to enjoy the rest.”"
SEC. 269. Regular and Perpetual Revenue.— Blackstone di-
vides these taxes into annual and perpetual; that is, those which
are raised according to the needs and exigencies of the occasion,
which would be determined by an investigation of the neces-
sary expenses of the government, and making an estimate of
what would be produced by perpetual taxes, meaning excises,
internal revenue taxes and import duties, and making up the
deficiency by voluntary contribution of the people, ascertained
and imposed by the commons.
11 Cooley's Blk. (3d ed.) 306.
§ 270.] THE NATIONAL REVENUE. 325
t
First among these he mentioned the land tax. These are
mentioned in the Magna Charta under the designation of scu-
tage and tailage."
IHe classes the grants of scutages and tailages and Subsidies
granted by the commons together. -
Another one of these fixed customs was the annual malt tax.
Among the perpetual taxes recognized in the English law
were customs or duties, toll tribute or tariff, payable on mer-
chandise exported and imported. Of these he says: “The
customs or the duties, toll, tribute or tariff, payable upon mer-
chandise exported and imported. The considerations upon
which this revenue (or the more ancient part of it, which arose
only from exports) was invested in the king were said to be
two: 1. Because he gave the subject leave to depart the king-
dom, and to carry his goods along with him. 2. Because the
loing was bound of common right to maintain and keep up the
ports and havens, and to protect the merchants from pirates.
Some have imagined they are called with us customs because
they were the inheritance of the king by immemorial usage
and the common law, and not granted him by any statute; but
Sir Edward Coke had clearly shown that the king's first claim
to them was by grant of parliament (3 Edw. I.), though the
record thereof is not now extant.””
SEC. 270. Direct Tawation in Jºngland.—These revenues of
the crown took the shape of grants, which it was the exclusive
privilege of the house of commons to originate.
Mr. Burke, in his speech on American taxation, points out
very clearly the distinction between such acts and regulations
of commerce which it was among the prerogatives of the crown
to prescribe, upon the same principles adverted to in the case
of Campbell v. Hall,” above noticed.
Such acts, having a title directly purporting to be only a
commercial regulation, and being in truth nothing more, were
not resisted by the American colonies.
1 “‘Taxes’ means burdens, charges 438; Matter of the Mayor, etc., 11
or impositions put or set upon per- John. 80.” Paschal's Ann. Const. 95.
sons or property for public uses; and 21 Cooley's Blk. (3d ed.) 313.
this is the definition which the code 8 Cowper, 206; Johnson v. M'In-
gives to tailage. 2 Inst. 522; Carth. tosh, 8 Wheat. 541.
326 TELE NATIONAL REVENUE. [$$ 271, 272.
SEC. 271. Taa’ation, as Such, Distinguished from Regulation
of Commerce.—The distinction here made is quite similar to
that between the imposition of a tax on exports by the states
or the United States and an imposition regulating such export.
It also bears upon the imposition allowable under the commerce
clause of the constitution.
The act of the British parliament of 1764 was the first act
applying to the colonies, wherein, in the preamble, it was re-
cited that parliament granted in the colonies and plantations of
America, and it was just and necessary that a revenue should
be raised there. In this manner the question was raised between
the sovereign power of the crown, which was recognized as a
part of his prerogative as arbiter of commerce, and those impo-
sitions voluntarily made by the people for the support of the
government which we call taxes."
SEC. 272. Direct and Indirect Taaces.—The general word
“tax” being a broad or generic term is said to include all of the
other species enumerated in the constitution, and it is assumed
that a tax must be either direct or indirect.”
Perhaps it is not possible to find or invent definitions which
will so accurately describe the elements of each species of im-
position, exaction and regulation authorized by the constitu-
tion as will distinguish it from others of a given class. Cer-
tain it is that these terms have not been so defined, nor has
there been an attempt on the part of the court to furnish a
definition for future cases. .
In the first case involving a consideration of this question, it
is said by Justice Chase that indirect taxes are to be laid by
1 See 1 Blk. Com, 273; Speech of cate, as a fundamental principle,
Edmund Burke, April 19, 1774; also
the address of James Wilson, on the
subject of Legislative Authority of
the Parliament over the Crown, pub-
lished August 17, 1774; Story's Com.
on Const., Sec. 192.
Chief Justice Fuller quotes from
the speech a sentence making clear
the distinction as follows: “As Burke
declared in his speech on concilia-
tion with America, the defenders of
the excellence of the English consti-
tution ‘took infinite pains to incul-
that, in all monarchies, the people
must, in effect, themselves, medi-
ately Or immediately, possess the
power of granting their own money,
or no shadow of liberty could sub-
sist.’ The principle was that the
Consent of those who were expected
to pay it was essential to the validity
of any tax.” Pollock v. Farmers’
Loan & Trust Co., 157 U. S. 429–556.
* Hylton v. United States, 3 Dall.
171.
§ 272.] THE NATIONAL REVENTUE. 327
the rule of uniformity, whereas the direct tax has been and
should be laid or assessed in proportion to the census or enu-
meration required by the constitution;" that is to say, the con-
stitution gave power to congress to lay and collect taxes of
every kind or nature without restraint excepting On importa-
tion. -
These impositions are to be imposed and colleated upon two
different principles, namely: three kinds of taxes, to wit, duties,
imposts and excises, were to be spread uniformly upon all sub-
jects of taxation.
Capitation and other direct taxes are to be apportioned among
the states according to the census.
Justice Chase, in his opinion, is inclined to the view that
there are but two classes of direct taxes, namely: poll tax,
without regard to property, profession or any other circum-
stances, and a land tax; and expresses a doubt whether a gen-
eral assessment of personal property within the United States
is included within the term “tax.”
And it was held in that case that a tax on carriages was not
a direct tax, and an act imposing the burden was upheld.”
1 “Albert Gallatin, in his ‘Sketch
of the Finances of the United States,”
published in November, 1796, said:
“The most generally received Opin-
ion, however, is, that by direct taxes
in the constitution, those are meant
which are raised on the capital or
revenue of the people; by indirect,
such as are raised on their expense.
As that opinion is in itself rational,
and conformable to the decision
which has taken place on the sub-
ject of the carriage tax, and as it
appears important, for the Sake of pre-
venting future controversies, which
may be not more fatal to the revenue
than to the tranquillity of the Union,
that a fixed interpretation should be
generally adopted, it will not be im-
proper to corroborate it by quoting
the author from whom the idea seems
to have been borrowed.” He then
quotes from Smith's Wealth of Na-
tions, and continues: ‘The remark-
able coincidence of the clause of the
Constitution with this passage in
using the word “capitation ” as a
generic expression, including the dif-
ferent species of direct taxes, an ex-
ception of the word peculiar, it is
believed, to Dr. Smith, leaves little
doubt that the framers of the one
had the other in view at the time,
and that they, as well as he, by di-
rect taxes, meant those paid directly
from and falling immediately on the
revenue; and by indirect, those which
are paid indirectly out of the rev-
enue by falling immediately upon
the expense.” 3 Gallatin’s Writings
(Adams' ed.), 74, 75.” Pollock v.
Farmers’ Loan & Trust Co., 157 U. S.
429–569.
2 Hylton v. United States, 3 Dall.
171. See 1 Cooley's Blk, 308, 309.
The term “indirect tax” does not ap-
pear in the constitution. Hylton v.
TJnited States, 3 Dall. 176.
328 TEIE NATIONAL REVENUE. [šš 273, 274.
SEC. 273. Product of Land Follows Condition of Land.—In
the case just cited it was unnecessary to determine whether a
tax on the products of land was a direct or indirect tax.
Justice Paterson expresses this opinion: “Perhaps the imme-
diate product of land, in its original and crude state, ought to
be considered as the land itself; it makes a part of it; or else the
provision made against taxing exports would be easily eluded.
Land, independently of its produce, is of no value. When the
produce is converted into a manufacture it assumes a new
shape; its nature is altered; its original state is changed; it be-
comes quite another subject, and will be differently considered.
Whether direct taxes, in the sense of the constitution, compre-
hend any other tax than a capitation tax and tax on land, is a
questionable point. If congress, for instance, should tax, in the
aggregate or mass, things that generally pervade all the states
in the Union, then, perhaps, the rule of apportionment would
be the most proper, especially if an assessment was to intervene.
This appears by the practice of some of the states to have been
considered as a direct tax. Whether it be so under the consti-
tution of the United States is a matter of some difficulty; but
as it is not before the court it would be improper to give any
decisive opinion upon it.” "
SEC. 274. Criteria Suggested by Hylton Case.—This remark
of Mr. Justice Paterson suggests the key or test for determin-
ing the difference between direct and indirect taxation; but his
argument suggests that there can be no infallible criterion
which shall, by certain and precise designation, fix a line be-
tween direct taxation which shall be apportioned and excise
duties and customs and licenses, which must be uniform as to
the objects of the imposition, and exactions upon the transac-
tion of business or the possession or distribution of property,
which shall be a mere regulation of commerce or a protection
of some of the objects of the government. *
It is to be observed that the imposition laid, which is involved
in the Hylton case, was not generally upon all vehicles, but
upon vehicles kept for use, so that the manufacturer of these
same vehicles, or a jobber, no matter how many of them had
been in his possession, was not within the provision of the law.
1 Hylton v. United States, 3 Dall. 171.
§ 275.] THE NATIONAL REVENUE. 329
It is quite manifest, especially when regarded with the light
of the discussion in the recent Income Tax Case, that the imposi-
tion, in order to be sustained, could only be regarded as a tax
upon the use of the designated things regarded in that light,
and properly designated as an excise tax.
The case of Hylton v. United States is very narrow in the
scope of the actual decision, and is not overruled either im-
pliedly or professedly by the decision of the Income Tax
Cases.
The language of the judges heretofore mentioned, instead of
being intended to lay down broad principles for future cases,
was cautiously used and expressly left.open for future cases.
That capitation taxes and taxes upon land are direct taxes
has never been doubted; but the impression which seems to
have obtained among the profession, and to have become a fixed
rule by the decision in the United States supreme court in
Springer v. United States,' that capitation and land taxes are the
only species of direct taxation, seems not to have been based
upon any independent reasoning in reference to the nature of
the thing taxed, or any distinction between the thing, whether
it be an intangible thing, such as a franchise, a chose in action,
or a tangible chattel, or an estate in land.
SEC. 275. The Rule and the Reason of it.—In the first decis-
ion of the Income Tax Case,” wherein it was decided that income
arising from real property was a direct tax, and in the second
case,” where it was held that income arising from the use of
personal property was likewise a direct tax, there was made, in
the course of the argument, the real distinction between prop-
erty in a thing and the thing itself, which has heretofore been
pointed out.”
Mr. Choate, in his argument, invoked the principle that the
highest interest in land that a man might in England obtain
was an estate, and that if the entire beneficial use of it was
granted by deed, accompanied by seizin, the land itself doth
pass.”
1 102 U. S. 586. 4 Shylock remarked: “You do take.
*Pollock v. Farmers’ Loan & Trust my house when you do take the prop.
Co., 157 U. S. 429; 158 U. S. 601. whereon it stands.”
3 158 U. S. 601. - 5 157 U. S. 540.
330 TEIE INATIONAL REVENUE.
[šš 276, 277.
A devise of the entire rents and profits is a devise of that
out of which the rents and profits may issue.
Upon the same principle, the court of appeals of New York
have announced the principle, universally accepted, that in the
law of eminent domain, or in view of the constitutional provis-
ion against unreasonable seizures and searches, a man's prop-
erty, real or personal, might be effectually taken or destroyed,
and the thing itself remain physically untouched."
By looking to the substance and disregarding the form, the
fesult was arrived at that a tax upon an income arising from
the use of any and all property, which fell directly on the man
himself, was a direct tax.
Thus, it is said that the enforced subtraction from the yield
of all the owners’ real or personal property is not so different
from a tax on the property as to cause one to be classed as direct
and the other indirect.”
SEC. 276. Indirect Taacation.—
Customs Duties, Imposts, Zecises, Tariff and Internal Rev-
enſue.”— All of the above terms are encountered in an investi-
gation of the power exercised and means used by the United
States in raising a revenue or regulating commerce. Indirect
taxes are not spoken of. Duties, customs and excise are the
words used in the constitution” to designate taxes other than
capitation and direct taxes.
SEC. 277. Difficulties to be Encountered.—The difficulty of
construing and applying the constitution in reference to the
power to impose indirect taxes is enhanced by the intimate
relationship which existed between the levying of imposts and
excise for the purpose merely of raising a revenue, and for the
purpose of regulating commerce.” -
Again, the rightful exercise of the police power on the part
of the states has been a question of great difficulty when it
liament granted him three pence per
I Wynehamer v. People, 13 N. Y.
- pound on all merchandise exported
378.
2 158 U. S. 618. & .
3 See, for meaning of these terms,
158 U. S. 622 et seq. Customs duties,
as such, were not within the king's
prerogative. They began, as such,
in the reign of Edward I., when par-
or imported. Dyer, 165; 2 Beawes'
Lex Merc. 919.
4 See Cooley, Taxation, pp. 3, 5, 23.
5 Pollock v. Farmers’ L. & T. Co.,
158 U. S. 620.
§ 278.]
THE NATIONAL REVENUE. 331
came in conflict with the powers of the general government
over the subject of commerce.
Notwithstanding the efforts which have been made to dis-
cover some principle which would furnish a practical guide for
determining in all cases the distinction between a direct and
indirect tax and taxation, properly so called, and the regulation
of commerce and business, no certain criteria exist.
It seems impossible that anything short of a constitutional
definition can be devised which will limit the courts in the ex-
ercise of that discretion and discrimination which knows no
bounds, respects no barriers and removes all impediments to
the result desired."
SEC. 278. Indirect Taaces — Definition.—Indirect taxation is
not used in the constitution, but was used by the framers of
that instrument in antithesis to direct taxation.” The distinction
intended to be made by this use is that the indirect imposition
does not fall primarily and ultimately upon the person paying
it,” but is imposed upon the materials or commodities which
the owner, be he merchant, manufacturer or carrier, uses as a
subject of his traffic; and because of this distinction it is said
that the imposition is levied upon the use of the thing rather
than upon the ownership of it, and in such a way that the in-
dividual has a choice by which he can avoid the contribution
by not purchasing or not using in the particular manner the
property or thing in question, or not importing it.
JOirect taa!es are so imposed that, while the thing itself is the
cause of the tax and the measure of it,” such tax is against the
man, and is a different thing and imposed upon different prin-
ciples from the collection of customs, duty or excise, the inter-
1 The definition of Judge Cooley
includes, within direct taxes, income
tax, and, while opposed to the fed-
eral case when framed, is correct
now. On the other hand, “business”
is erroneously included. The defini-
tion of indirect taxes is correct so far
as it goes, but must be held to be too
narrow for the present time. Page 5.
2 Income Tax Cases, 158 U. S. 622.
*If one stops to consider the nat-
ure of a tax other than a poll tax,
viz., an imposition or levy against
every person according to the value
Or possession of things, made by his
Consent, express or implied, i. e., a
grant, which when levied and as-
sessed becomes a debt, and Only a lien
by statute, it becomes more plain
that the man is taxed directly. The
transaction is with the man. On the
other hand, in case of the excise, cus-
tom or duties the thing is primarily
burdened. -
4 The protection of the man and the
property are the considerations of it.
332 THE NATIONAL REVENUE. [š 279.
nal revenue tax or license, which is included under the desig-
nation of indirect taxation or business regulation. w
SEC. 279. Indirect Taaces, Why So Called.—Blackstone, speak-
ing of such imposition, says: “Other customs payable on ex-
ports and imports were distinguished into subsidies, tonnage,
poundage and other imposts.” *
Again he says: “ These customs are then, we see, a tax im-
mediately paid by the merchant, although ultimately by the
consumer. And yet these are the duties felt least by the peo-
ple; and, if prudently managed, the people hardly consider
that they pay them at all. For the merchant is easy; being
sensible, he does not pay them for himself; and the consumer
who really pays them confounds them with the price of the
commodity.” " -
Judge Cooley, in his work on Taxation, says that indirect
taxes are those levied on commodities (evidently articles of
trade in the course of commerce) before they reach the con-
sumer, and are paid by those on whom they ultimately fall,
not as taxes, but as a part of the price; and secondly, the du-
ties upon imports, and the excise and stamp duties levied upon
manufactures.”
IHe remarks that states always derive their principal revenue
from direct tax, and the federal government from those which
are indirect.
IHe notices the view of the political economist Turgot, whose
views are cited in the Income Tax Cases, that indirect taxes are
resorted to “in order to pluck the goose without making it cry
Out.” 8
|Prior to the late income tax, it was held that an income tax
levied against an inhabitant is rather a duty or excise on the
transaction of business than a tax upon the individual because
of the ownership of the property.”
1 Cooley's Blk. (3d ed.) 315. Here
we see an intimation on the political
controversy as to whether the con-
sumer pays the tax or whether the
importer pays the tariff.
2 Page 5. These are sometimes des-
ignated respectively as external and
internal taxes. See 158 U. S. 624.
* Cooley on Taxation, p. 5. The
Anherican goose was not originally
So docile. The first excise tax caused
the Pennsylvania whiskey insurrec-
tion, an account of which is given in
Von Holst's Const. Hist, U. S., vol. 1,
pp. 94–101. It may be noticed that
the collection of the revenue was the
point of impact between the seced-
ing states and the national govern-
Iment in 1861.
4 Pacific Ins. Co. v. Soule, 7 Wall.
§§ 280, 281.] THE NATIONAL REVENUE. 333
SEC. 280. Inaccuracy in Use of Terms.--It has been said
that an indirect tax is “a tax levied on commodities 4 before
they reach the consumer;” they embrace taxes on imports, ex-
cise taxes and licenses on occupations, and the like.”
This does not express clearly what is intended. The true
idea is that it is an imposition upon the article after it has em-
barked upon its mission and become an article in manufacture
or trade. It then attains the quality of a commodity. :
SEC. 281. Distinguishing Features.—The writer has noticed
no instance of a tax upon the product of land or an unmanu-
factured article in the hands of the original producer which
has been designated as anything else than a direct tax.
Plainly, the grower of tobacco, for example, might be com-
pelled to stamp his tobacco, upon the same principle that arti-
cles intended to be exported may be required to be stamped,
in order to protect the government against fraud in the legiti-
mate imposition of indirect taxes or impositions; but this is
another thing from the tax.
It will be found that another attribute accompanies direct
taxation which does not accompany the indirect imposition.
It will be observed that as to direct taxation the generic
language is “capitation or other direct taxation.”
In direct taxation the individual is taxed because of what
he owns, and the primary liability is against the individual;
whereas in the case of duties and excise, the property may be
seized and held until the tax is paid, without any formality as
to judgment or due process of law.”
Illustration.—In illustration of this may be noticed the argu-
ment of Mr. Guthrie, which found sanction in the opinion of
the court, where he says the tax upon classes of corporations
under the old income law was sustained, not because it was a
tax upon the property, but upon the distinct ground that it
433. See also Wilcox v. Middlesex
Co., 103 Mass. 544; Springer v. United
States, 102 U. S. 586.
1 This word commodity has a tech-
nical meaning in the nomenclature
of the law merchant; it was applied
Only to a thing embarked in com-
merce. See 2 Beaves' Lex. Merc.,
p. 918. Notice also Anderson’s defini-
tion, which attaches to the word the
signification of the privilege accorded
the owner of exporting or importing.
2 Veazie Bank v. Fenno, 8 Wall.
533; Scholey v. Rew, 23 Wall. 331.
3 This is the real distinction, clearly
made by Chief Justice Fuller in In-
come Tax Case, 158 U. S., at page 627.
334. THE NATIONAL REVENUE. [$$ 282, 283.
was an excise on their business. Such was the reason assigned
by Mr. Justice Swayne in the case of Pacific Ins. Co. v. Soule,"
and such the ground reiterated by Mr. Justice Miller in deliv-
ering the opinion of the court in Jèailroad Co. v. Collector.”
The bank tax was held to be a tax, not upon property or in-
come, but upon the act of issuing notes; not on the obligation
itself, but on its use in a particular way; and the judgment in
Veazie Bank v. Fenno,” followed by Wational Bank v. United
States," clearly shows this to be the true ground.”
SEC. 282. Rationale of Former Decisions.—In his opinion in
the Income Tax Case, Chief Justice Fuller says: “Let us exam-
ine the cases.” -
He states as to the Pacific Insurance Co. v. Soule case that
it was a tax upon the business of an insurance company, and
an excise.
Referring to the Wational Bank v. United States and Veazie
Bank case, he comments upon the language of Mr. Chief Jus-
tice Waite, where he says: “The tax thus laid is not on the
obligation, but on its use in a particular way.”
And the case of Scholey v. Rew, which was a case of a suc-
cession taa, which the court held to be plainly an excise tax or
duty. -
The chief justice distinguishes all these cases from the case
then under consideration, in that they do not fall upon prop-
erty or the person directly, but upon the use of the property in a
particular way. .
The ruling principle, then, which has received the sanction
of the highest judicial tribunal, rests upon clear and substantial
reasons, that direct taxation (other than mere capitation tax)
falls upon the individual because of his ownership, while the in-
direct taxation, whether it be called tariff, custom, duty, impost,
excise or license, falls upon the particular use of property, the
regulation of the right to engage in certain callings and the
regulation of certain businesses. :
SEC. 283. Succession and Inheritance Taa’es.—The power of
the state to impose what are called succession and inheritance
17 Wall. 433. - 4101 U. S. 1. .
2 100 U. S. 595. 5 Pollock v. Farmers’ Loan & Trust.
38 Wall. 533. Co., 157 U. S. 429–445.
§ 284.] THE NATIONAL REVENUE. 335
taxes rests upon much plainer grounds than the same imposi-
tions when made by congress.
The sovereignty of the state extends to the manner of hold-
ing and transferring property situated within its borders; and
while property is recognized as the right to dispose of, as well
as own and use, nevertheless this does not carry with it the
right to devise it in a particular direction.
It follows that a state has the right to exact any condition
it sees fit for the privilege of taking by inheritance.
The United States, however, does not stand in the same posi-
tion in reference to property situated within the limits of a
state, and an inheritance tax, strictly speaking, must rest upon
other grounds, if it can be defended at all. -
The power of taxing property, security, devise or succession
as such has been exercised by the United States, but it cannot
be said, in the case of the United States, that it has any right to
impose a condition upon the inheritance which must be com-
plied with before the estate can vest, because there can be no
doubt that this is one of the exclusive rights of a state.
Under the acts of congress which were occasioned by the
civil war and remained in force until 1870, the inheritance tax
was not a condition to the taking of the estate, but was an im-
position on account of the ownership, and the designation is
but a mode of discriminating between persons.
It would seem that such an imposition falls under the desig-
nation of a direct tax, and would be unobjectionable upon the
ground of conflict with the exclusive right of the state to reg-
ulate the devolution of property." -
SEC. 284. Lay, Levy, Impose.—In the exercise of the power
to provide the treasury with a revenue, the constitution speaks
of laying tax, etc. The laying, levying or imposing is an act of
declaring that such an amount of tax shall be raised and col-
lected from certain persons, or certain property, or certain
businesses.
Where the taxes are for a single instance or a number of in-
stances or a direct purpose, that would fall under what Black-
stone terms “annual taxes,” although they may not be fixed as
regards period of time.
1 See Wright v. Blakeslee, 101 U. S. 174.
336 TEIE INATIONAL REVENUE. [$$ 285, 286.
Such a tax requires the assessment and collection from the
individual.
As to direct taxation, the requirement of the law is that it
shall be levied upon the people of the states proportionately to
their representation in congress.
It seems to be under contemplation of the law that imposi-
tions which were to be levied and collected from the persons
of a given state might be paid by the state itself, if it desired
to avoid the actual collection by the United States. Otherwise
the tax is collected by the officers of the United States.
SEC. 285. Assessment is the process of inquiry and adjust-
ment by which the amount each person shall pay upon his
specific property is determined and designated.
Upon general principles it is a deprivation of the citizen's
rights, and contrary to the requirement against unjust discrimi-
nations, that inequality in the mode of assessment should occur.
The impositions must be uniform as to persons and property
standing in the same situation. Within these restrictions, that
method and mode of ascertaining and fixing the amount best
suited to the needs of the government may be followed.”
Before the adoption of the constitution there was no mode
of proceeding known by which taxes could be collected without
a previous determination of the amount to be paid, either by
judgment of a court of law or by action of some public officer.
In all decisions wherein there is a reference to the assessment
and collection of taxes, the person whose duty it was to ascer-
tain the amount of the taxes is spoken of as an Officer.
Thus, in the Dollar Savings Bank case,” the court say: “An
assessment is only determining the value of the thing taxed,
and the amount of the tax required of each individual. It may
be made by designated officers, or by the ‘law itself.’”
SEC. 286. Collection and Enforcement.— The method of col-
lection of direct taxes is not necessarily uniform, and several
methods may be pursued at the same time.
l Pollock v. Farmers’ Loan & Trust
Co., 157 U. S. 429; 158 U. S., at page
620. -
2 Santa Clara Co. v. So. Pac. R. Co.,
18 Fed. Rep. 385.
3 19 Wall. 227.
4 “But where a tax is levied on
property not specifically, but accord-
ing to its value, to be ascertained by
assessors appointed for that purpose
upon such evidence as they may Ob-
tain, a different principle comes in.
The officers in estimating the value
act judicially.” Hager v. Reclama-
tion Dist. No. 108.
§ 287.] THE NATIONAL REVENUE. 337
The first tax of 1798 was collected by United States officers."
A direct tax being against the person is not, in the absence of
a statute, a lien upon property, but is a personal charge against
the individual.”
Ordinarily, however, all taxes and impositions are by the
statutes made a lien upon the property.”
Judge Cooley enumerates various methods of collecting taxes,
but it will only be necessary here to emphasize the principle
underlying the imposition of direct taxes, namely, that a direct
tax is a debt in favor of the government and against the indi-
vidual, differing from an ordinary debt, which one incurs in
pursuance of a direct promise to pay or by reason of a direct
contract or breach of his contract only in its origin.”
Independently of special provisions in acts of congress or of
states, it follows that suits at law may be maintained by the
United States to recover taxes duly assessed.” And the giving
of a specific remedy does not exclude a resort to common-law
methods." . -
SEC. 287. Collection of Indirect Taxes.—Indirect taxes may
be collected by the summary process of immediate seizure of
the goods, where they are imported or in the custom-house, or
1 Pollock v. Farmers' Loan & Trust
Co., 157 U. S. 472. -
Cooley notices the following meth-
ods of collecting taxes:
1. By suit. See State v. Williams, 8
Tex. 384; Houston, etc. R. R. Co. v.
State, id. 148.
2. By the arrest of the person taxed.
See Lothrop v. Ide, 13 Gray, 93; Hall
v. Hall, 3 Allen, 5.
3. By distress.
2 McCord, 55, 60.
4. By the detention of goods and
chattels.
5. By sale of lands.
v. Moody, 30 Vt. 655.
6. By the imposition of penalties.
See Sprague v. Bailey, 19 Pick. 436.
7. By forfeiture of property taxed.
See Barbour v. Nelson, 1 Litt. 60, for
the affirmative, and Wild’s Lessee v.
Serpell, 10 Gratt. 405, for the nega-
tive, of this proposition.
See State v. Allen,
See Hutchins
8. By conditions on the exercise of
a right. See Griffin v. Rising, 11 Met.
339; Batterson v. Barlow, 60 Pa. St.
54. Cooley, Taxation, p. 299.
2 Cooley on Taxation, p. 299. “The
rule is settled that, to constitute any
charge a lien upon property, such
lien must be specifically declared by
the statute.” Burgdorf v. District of
Columbia, 7 App. D. C. 405.
3 Lyon v. Alley, 130 U. S. 177. See
also Burgdorf v. District of Columbia,
7 App. D. C. 405. So water rates in
cities are frequently held to be a
paramount lien. Union Pac. R. R.
Co. v. Cheyenne, 113 U. S. 516.
4 People v. Seymour, 16 Cal. 340.
5 Garrett v. Memphis, 5 Fed. Rep.
860. See also Dollar Savings Bank
v. United States, 19 Wall. 227.
6 Savings Bank v. United States, 19
Wall. Q38,
22 -
338 THE NATIONAL REVENUE. [š 288.
( .
by suit against the person who has refused to comply with the
law, or for the collection of penalties, and in the case of smug-
gling there are certain penalties which may be enforced by
suit or by seizure and forfeitures.
These are part of the duties of officers of a department of
government. The judicial remedies open to them fall within
the jurisdiction of courts, and may be noticed under the exami-
nation of jurisdiction or procedure or crimes, and need not be
further noticed here.
SEC. 288. Taa’ation by the Territories.—It is the common
practice in the United States to invest the people residing
within a territory with the powers of self-government, and
among other powers usually given is that of taxation.
This power is to be exercised in accordance with the same
general principles which pervade the power of taxation.
As the organization of these territories is not always com-
plete and regular, some anomalous conditions exist in reference
to taxing districts.
Again, the Indian tribes arefrequently found domiciled within
the territories. Taxes are, however, levied and imposed upon
their property by the territorial legislatures and local author-
ities authorized by them."
Such taxes imposed upon the property of Indians within the
territories do not conflict with the power of the United States
to regulate commerce with the Indian tribes.”
1 Thomas v. Gay, 169 U. S. 264; 2Thomas v. Gay, 169 U. S. 264.
Wagoner v. Evans, 170 U. S. 588.
CEIAPTER XVI.
TOWER TO REGULATE COMMERCE.
SEC. 289. Relation of Commerce to Other Subjects.-Next in
the order of enumeration of the powers of congress is the power
to borrow money on the credit of the United States; but much
more intimately connected with the subject of direct taxation
which we have under consideration, and from which it is hard
to distinguish many of the exercises of the powers, and which
frequently limit the powers of the states as to taxation, is the
commerce clause of the constitution, which gives to the United
States the power to regulate commerce with foreign nations
and among the several states and with the Indian tribes.
Of vital importance to the existence of the Union, equally
with the power to levy taxes directly against the individual and
against property, was the power to regulate commerce with
Other nations and among the states.
The power to regulate commerce, as it has been interpreted
and extended by the decisions of the supreme court of the
United States, affects materially the taxing power of the states,
and is far more dangerous to the autonomy of the state and the
right of local self-government, and the power of the state under
the police power to protect its citizens from noxious things and
noxious persons, than the exercise of the inherent powers in
the government which have been so clamorously denied and so
closely scrutinized." -
1 Mr. Chief Justice Taney, in the what may be absolutely necessary for
Passenger Cases, seems not to have executing their inspection laws, and
regarded the state taxing power as also from laying any tonnage duty.
abridged. He says: “I may, there- So far their taxing power over com-
fore, safely assume that, according to merce is restrained, but no further.”
the true construction of the constitu- 7 How. 283, 480.
tion, the power granted to congress “It is clear,” say Prentice & Egan
to regulate commerce did not in any in their treatise on the Commerce
degree abridge the power of taa’ation Clause, “that such an interpretation
in the states. . . . They are ex- as that for which Mr. Chief Justice
pressly prohibited from laying any Taney contended would be wholly
duties on imports or exports, except incompatible with the controlling
340
[š 290.
POWER TO REGULATE COMMERCE.
Under the modern interpretation of the commerce clause, the
state is utterly helpless to erect any barrier against the flood
of noxious liquors and noxious articles which, under the pro-
tection of commerce, non-residents may pour in upon it, although
such articles are, and always have been, conceded to be of such
a nature and character that any government or state may prop-
erly regulate or entirely prohibit."
SEC. 290. Proper Place to Treat the State Power.—It so
happens that the discussion and construction of the commerce
purpose of the constitution to Secure
commerce among the states from
state regulation. There seems to be
no doubt that the convention under-
stood the power of taxation was ca-
pable of use, not only as a means of
revenue, but also for commercial reg-
tilation.
“‘The line of distinction,” says
Madison, ‘between the power of reg-
ulating trade and that of drawing
revenue from it, which was once con-
sidered a barrier of our liberties, was
found upon discussion to be abso-
lutely indefinable.” [But this is not
saying that the distinction was not
discernible when the instance was
brought to view.]
“Again, in commenting upon the
case of McCulloch v. Maryland, Madi-
Son remarks: “When the distinction
between separate powers is disre-
garded, and for the definite connec-
tion between means and ends is sub-
stituted legislative discretion as to
the former, the legislative power be-
comes limitless. Ends may shift their
character and will, according to the
exigency of the legislative body.
What is an end in One case may be
a means in another; may, in the
same case, be either an end or a
means, at the legislative option. The
British parliament, in collecting
revenue from the commerce of Amer-
ica, found no difficulty in calling it
either a tax for the regulation of
trade or the regulation of trade with
a view to a tax, as suited the argu-
ment or the policy of the moment.’”
Prentice & Egan, Com. Cl., 197–98.
1 Leisy v. Hardin, 135 U. S. 100. See
also Rhodes v. Iowa, 170 U. S. 412;
Nance v. Vandercook, 170 U. S. 438.
“In Henderson, etc. v. Mayor of New
York, 92 U. S. 259, the court, speak-
ing by Mr. Justice Miller, while de-
clining to decide whether, in the
absence of action by congress, the
states can, or how far they may, by
appropriate legislation, protect them-
Selves against actual paupers, va-
grants, Criminals and diseased per-
Sons arriving from foreign countries,
said that no definition of the police
power, and ‘no urgency for its use,
can authorize a state to exercise it in
regard to a subject-matter which has
been confided exclusively to the dis-
cretion of congress by the constitu-
tion.’ Page 271. Chy Lung v. Free-
man, 92 U. S. 275. And in Railroad Co.
v. Husen, 95 U. S. 465, Mr. Justice
Strong, delivering the opinion of the
court, said that ‘the police power of
a state cannot obstruct foreign com-
merce or interstate commerce be-
yond the necessity for its exercise;
and, under color of it, objects not
within its scope cannot be secured
at the expense of the protection af-
forded by the federal constitution.
Pages 473, 474.” Quoted in Brennan
v. Titusville, 153 U. S. 300. As to ar-
ticles not noxious, see the OleOmar-
garine Cases, Paul v. Com. of Pa. and
Schollenberger v. Com. of Pa., 18 Sup.
Ct. Rep. (U. S.), May, 1898, p. 757.
§ 291.] POWER TO REGULATE COMMERCE. 341
clause of the federal constitution most frequently arises in a
discussion of the power of the state to impose taxes, to enact,
Quarantine laws, harbor regulations, exact licenses, to prohibit.
the transaction of certain lines of business, to prohibit the sale.
of certain noxious goods or articles, to prohibit the transporta-
tion through the state of animals or persons infected with dis-
ease, or to prohibit the entry into the state of persons deemed
unfit by the people of the state to mingle with them.
Naturally, then, the great bulk of the law is more properly
treated in reference to the limitations on the police and taxing
powers of the state and the power of the state legislature to
pass laws upon the subject.
In its proper place, under the powers of the state, will be
examined the limitations upon the powers of the state by rea-
son of the commerce clause. Here it is proper to treat only
the nature of the power conferred by the commerce clause,
and the extent of its exercise by the United States, and the
character of the power as being exclusive or concurrent with
that of the United States, and such matters as pertain to the
power of congress."
SEC. 291. “Begulate Commerce”— Meaning of the Term.—
In these two words are found the whole scope of the power.
The extent of it, then, is to regulate; the subject of the regula-
tion is commerce. -
The species or departments of its exercise are “with foreign
nations and among the several states and with Indian tribes.”
The embargo or entire prohibition is clearly distinguishable
from the regulation of anything.
The prohibition of the liquor traffic is a familiar instance
wherein the distinction is constantly drawn between regulat-
ing and prohibiting. -
It will be observed that, in speaking of the inherent powers
of the general government, they were discussed in relation to
matters wherein there was no express mention, either by way
of a grant or in words which excluded any implication.
As a question of constitutional construction, the power of
the United States to lay an embargo stretches the canons of
construction beyond the point necessary to imply inherent
powers.
1 Hence the title of Judge Cooley, “Constitutional Limitations.”
342 POWER TO REGUIATE COMMERCE. [$ 292.
There is an obstacle more difficult to overcome in this con-
nection than in any other exercise of a non-enumerated power.
According to general rules of construction, the express men-
tion of one thing excludes the implication of another.
The subject of commerce is designated, the extent of the
power is also fixed, and the nature of the power to regulate is
expressly mentioned.
An embargo in times of peace is a simple prohibition.
It is obvious that such a power might bear more heavily
upon one section of the country, or upon states not upon the
seaboard, than upon those in another section of the country
where but a small portion of the business of its inhabitants was
in foreign trade.
Mr. Justice Story said that he had always considered an em-
bargo as going to the utmost limit of constructive power under
the constitution. “It stands upon the extreme verge of the con-
stitution, being in its very form and terms an unlimited prohi-
bition or suspension of foreign commerce.”"
Being aimed at a foreign nation and exercised with discre-
tion, it has popular sympathy; but being an unlimited power,
and the exercise of which, though laid in general terms, may
operate on a special few and those in a section, it is more
than probable that it was not within the contemplation of the
framers of the constitution.
The constitutionality, however, of the measure is settled both
by long acquiescence and by judicial decision, or at least obiter
of such weight as to be practically conclusive.”
The extent, however, of its exercise is not entirely beyond
controversy. Judge Story says that the power may be in-
voked on the maxim, Salus popºlº Suprema lea; but the maxim
might with equal force be invoked to sustain the police power.
SEC. 292. Nature and Validity of Embargo — Marshall's
Opinion.—“The universally acknowledged power of the gov-
ernment to impose embargoes must also be considered as show-
ing that all America is united in that construction which
comprehends navigation in the word “commerce.’ Gentlemen
have said, in argument, that this is a branch of the war-making
! Life and Letters of Justice Story, *Story's Com, on Const., § 1292.
I, pp. 185, 186, quoted in 1 Von Holst,
Const. Hist. U. S., 204.
§ 292.] POWER TO REGULATE COMMERCE. 343
power, and that an embargo is an instrument of war, not a
regulation of trade.
“That it may be, and often is, used as an instrument of war,
cannot be denied. An embargo may be imposed for the pur-
pose of facilitating the equipment or manning of a fleet, or for
the purpose of concealing the progress of an expedition prepar-
ing to sail from a particular port. In these, and in similar
cases, it is a military instrument, and partakes of the nature of
war. But all embargoes are not of this description. They are
sometimes resorted to without a view to war, and with a single
view to commerce. In such a case an embargo is no more a
war measure than a merchantman is a ship of war because
both are vessels which navigate the Ocean with sails and seamen.
“When congress imposed that embargo which for a time en-
gaged the attention of every man in the United States, the
avowed object of the law was the protection of commerce and
the avoiding of war. By its friends and its enemies it was
treated as a commercial, not as a war measure. The persever-
ing earnestness and zeal with which it was opposed, in a part
of our country which supposed its interests to be vitally affected
by the act, cannot be forgotten. A want of acuteness in dis-
covering objections to a measure to which they felt the most
deep-rooted hostility will not be imputed to those who were
arrayed in opposition to this. Yet they never suspected that
navigation was no branch of trade, and was therefore not com-
prehended in the power to regulate commerce. They did in-
deed contest the constitutionality of the act, but on a principle
which admits the construction for which the appellant contends.
They denied that the particular law in question was made in
pursuance of the constitution, not because the power could not
act directly on vessels, but because a perpetual embargo was
the annihilation, and not the regulation, of commerce. In terms,
they admitted the applicability of the words used in the con-
stitution to vessels; and that in a case which produced a degree
and an extent of excitement calculated to draw forth every
principle on which legitimate resistance could be sustained. No
example could more strongly illustrate the universalunderstand-
ing of the American people on this subject.”
1 Gibbons v. Ogden, 9 Wheat. 1–192.
344 POWER TO REGULATE COMMERCE. [$$ 293, 294.
SEC. 293. Commerce—lºatent of the Term.— The word “com-
merce’ is not open to a definition which may rigidly describe
all those matters which may at some future time fall within
the power granted by this clause of the constitution.
It naturally includes traffic—the purchase and sale of goods
and commodities. It has also been held to embrace transpor-
tation of persons and of tangible things, and the exigencies of
modern business have brought into play, as an instrument of
commerce, the transmission of messages by telegraph and tele-
phone.
Commerce also includes navigation. Not only does it in-
clude all these forms of intercourse, but it includes all the in-
struments by which it is accomplished,—steamboats, steam
railways, stages, coaches, and the necessary adjuncts thereto,
such as wharves, depots, streams, canals, lakes, etc.; in fact,
everything which may reasonably and properly be termed es-
sential or convenient for the exercise of commerce.
Chief Justice Marshall, in Gibbons v. Ogden, began the au-
thoritative exposition of the term “commerce,” and it has been
extended with the growth of the subject and the invention of
modern appliances until there is no longer any doubt as to the
extensive meaning of the word.”
SEC. 294. Not All Interstate Contracts Are Commerce.—The
business carried on between persons domiciled in different
states and countries must, to fall within the designation of the
constitution, be a business which is recognized as a part of com-
TOleI’Cé. -
Insurance Contracts.-In Paul v. Virginia,” an insurance
agent was engaged in Soliciting contracts for fire insurance.
It was held that the character of the business, and not the fact
that it was carried on between citizens of different states, is
the test as to whether a license or exaction against the business,
or against the Solicitor, was a regulation of interstate commerce,
and that the business of insurance did not fall within the inten-
tion of the clause.
19 Wheat. t—186. See Hopkins v. Co. v. Livingston, 3 Cow. 713; Leloup
TJnited States, 19 Sup. Ct. Rep. 40. v. Mobile, 127 U. S. 640.
2 Gibbons v. Ogden, 9 Wheat. 1, 38 Wall. 168. See also Insurance
186–190; Brown v. Maryland, 12 Co. v. New York, 119 U. S. 110; Hooper
Wheat. 446; North River Steamboat v. California, 155 U. S. 648.
§ 295.] POWER TO REGULATE COMMERCE. 345
The Drummer Cases.—It is not safe, however, to conclude
that all cases of insurance fall within the same principle. A
contract to indemnify the owner of property, which was clearly
a legitimate commodity of commerce, from loss during the period
of its transportation and while it remained within the protec-
tion of interstate commerce, might possibly be held to be an
incident of commerce.
The principle upon which a solicitor of insurance is held
subject to the imposition of a license and regulation of a state
does not cover the case when an attempt is made to exact a
license fee or regulate the manner of soliciting the purchase or
sale of legitimate objects of commerce intended for importa-
tion into a state. -
The subject of licensing so-called drummers, or what are:
termed in more polite phrase, commercial travelers, falls within
the inhibition against state or municipal power, and it is held
that any burden imposed upon an agent who is engaged in in-
terstate commerce, legitimately and bond ſide, is a burden or
regulation of the commerce."
SEC. 295. Nature of the Power–JEacclusive and Concurrent.
That the power of the United States to regulate interstate and
1 Brennan v. Titusville, 153 U. S.
289; Asher v. Texas, 128 U. S. 129;
Robbins v. Taxing Dist., 120 U. S. 489.
A recent case shows how thoroughly
well understood is this rule. The opin-
ion of the court in Talbot v. State,
Crim. Ct. of App. (Texas), decided
March, 1898 (44. S. W. Rep. 1091), is as
follows: “The offense was committed
in January, 1898. The punishment
was assessed at a fine of $150. The
evidence shows that the appellant
was representing Cole Bros., who re-
sided in Greencastle, Putnam county,
Ind., and who carried on their busi-
ness at that place. Cole Bros. have
not, and never have had, a place of
business within the limits of the state
of Texas, and appellant is their agent
and representative soliciting orders
for the placing of lightning rods on
houses in Grayson county, and when
the Orders are Secured they are sent
to the place of business of Cole Bros.,
at Greencastle, Ind. Lightning rods
were then made in obedience to said
Orders, shipped to Texas, and, when
required to do so, appellant assisted
in placing these lightning rods at the
places desired by the purchasers. For
this he collected the money for the
Sale, or took notes, as the case might
be. Without going into any discus-
sion of the matter further than here-
tofore, we hold that the conviction
was erroneous. This seems, under the
decisions of the Supreme Court of the
TJnited States, to be a tax upon inter-
state commerce.” See Ex parte Hol-
man, 36 Tex. Cr. R. 255; Brennan v.
Titusville, 153 U. S. 289; Asher. V.
Texas, 128 U. S. 129; Corson v. Mary-
land, 120 U. S. 502; Robbins v. Tax-
ing Dist., 120 U. S. 489; Hopkins v.
TJnited States, 19 Sup. Ct. Rep. 40.
34-6 IPOWER TO REGULATE COMMERCE. [$296.
international commerce is paramount has never been seriously
disputed; but whether, under all circumstances, the power of
congress is exclusive of the powers of the state, in matters af-
fecting or even regulating the pursuit of commerce and its
instrumentalities and agencies, has been the subject of much
argument, and is a question of no small difficulty. The judges
in the same cases have frequently had occasion to disagree in
several important particulars; later decisions have overruled
the earlier holdings.
The most useful task, then, is not to pass in review the dif-
ferent decisions of the supreme court, but to bring forward
and distinguish the phases in which the questions have ap-
peared and emphasize the principles upon which the conclu-
sions have been reached.
Dearing in mind that commerce includes navigation as well
as all the other means by which it may be carried on, we are
enabled to see the bearing of the great case which sets forth
the first phase in which the question was presented."
SEC. 296. First Phase — All Regulations as Such Must Em-
amate from Congress.—The idea intended to be conveyed by
this expression is that if the object of the legislation and its
effect is properly classed as a regulation of interstate commerce,
including, of course, the navigation of a stream, which, although
lying wholly within a state, is still properly classed as among
the agencies of commerce, such legislation is beyond the power
of the state.”
The first great case which may be said to be the base line or
initial point from which all reasoning upon this subject starts
is Gibbons v. Ogden.” In this case the state of New York
granted an exclusive license or monopoly to Robert Livingston
to navigate with steamboats the waters within her borders.
There had been no legislation on the subject by congress
other than the pilotage law." The question directly presented
1 Gibbons v. Ogden, 9 Wheat. 1, 240. 4 The first congress adopted the
2The object of the statute is im- following provision: “And be it fur-
portant, as commerce might be af ther enacted: That all pilots in the
fected by acts not of the nature of bays, inlets, rivers, harbors and ports
regulations. 9 Wheat. 1. See Hopkins of the United States shall continue
v. United States, 19 Sup. Ct. Rep. 40. to be regulated in conformity with
39 Wheat. 1. the existing laws of the States, re-
§ 297.] POWER TO REGULATE COMMERCE. 347
was whether the power of congress was exclusive in the sense
that the state was divested of it in toto from the beginning,
even where congress had not acted, and it was held that the
power to regulate commerce as such was not possessed by the
state in any degree. The ruling has never been departed from.
It should be observed that the state legislation involved in
this case was a regulation of commerce, pure and simple, and
did not involve an exercise of the taxing power or the police
power. *
SEC. 297. Second Phase — The Exercise of its Police Power
by a State May Affect Commerce Where Congress Has Not Leg-
islated.— A more difficult question arises when a state, in the
exercise of its police power, which otherwise would be entirely
proper and legitimate, affects the subjects of commerce or Ob-
structs its instruments or impedes their free exercise.
It will be seen that in this case the power exercised is ad-
mittedly the police power, clearly distinguishable from a regu-
lation of commerce, and as clearly within a state power as is
the power to regulate commerce within the jurisdiction of con-
gress. * ~.
The early view of the supreme court in this situation is ex-
pressed in the opinions and decisions of the case of Wew York
v. Miln." A statute of the state required the master of any
vessel arriving from foreign countries to make affidavit of
the name, age, etc., of his passengers, with a penalty for Omis-
SIOI). -
While it was admitted that the subject of commerce was af-
fected, it was also decided that the power exercised was clearly
the police power as such; and there being no congressional
legislation, this exercise of the police power was sanctioned.
The question, as a question of the exclusive nature of the
power of congress, was not directly involved as it was in Gib-
Bons v. Ogden.
The conflicting views of the judges in that case, Judge
Story dissenting, will be seen by a comparison of expressions
quoted below.” *
spectively, wherein such pilots may congress.” See In re Rahrer, 140
be, or with such laws as the states U. S. 545; Cooley v. Board of War-
Imay, respectively, hereafter enact dens, 12 How. 319.
for the purpose, until further legis- 1 11 Peters, 101.
lative provision shall be made by 2 Majority opinion: Barbour, J.,
348
[š 298.
Power To REGULATE commerce.
SEC. 298. Third Phase—Where the Subject of the State Leg-
islation is Not Directly Aimed at, but an Instrument of Com-
merce is Affected.— In another case" arising prior to Wew York
Says: “But we do not place our opin-
ion on this ground. We choose rather
to plant ourselves on what we con-
sider impregnable positions. They are
these: That a state has the same un-
deniable and unlimited jurisdiction
Over all persons and things within
its territorial limits as any foreign
nation, where that jurisdiction is not
Surrendered or restrained by the con-
stitution of the United States. That,
by virtue of this, it is not only
the right, but the bounden and sol-
emn duty, of a state to advance the
Safety, happiness and prosperity of
its people, and to provide for its gen-
eral welfare by any and every act of
legislation which it may deem to be
Conducive to these ends, where the
power over the particular subject, or
the manner of its exercise, is not sur-
rendered or restrained, in the man-
ner just stated. That all those pow-
ers which relate to merely municipal
legislation, or what may, perhaps,
more properly be called internal po-
lice, are not thus surrendered or re-
strained: and that, consequently, in
relation to these, the authority of a
state is complete, unqualified and
exclusive.” Mayor, etc. of New York
v. Miln, 11 Pet. 101–137.
Judge Story, dissenting, says: “I ad-
mit, in the most unhesitating man-
ner, that the states have a right to
pass health laws and quarantine
laws, and other police laws not con-
travening the laws of congress (not
the United States constitution), right-
fully passed under their constitu-
tional authority. I admit that they
have a right to pass poor laws, and
laws to prevent the introduction of
paupers into the state under the like
qualifications. I go farther, and
admit that, in the exercise of their
legitimate authority over any par-
ticular subject, the states may gen-
erally use the same means which are
used by congress, if these means are
suitable to the end. But I cannot
admit that the states have authority
to enact laws which act upon sub-
jects beyond their territorial limits
or within those limits, and which
trench upon the authority of con-
gress in its power to regulate corm-
merce. It was said by this court in
the case of Brown v. Maryland (12
Wheat. 419), that even the acknowl-
edged power of taxation by a state
cannot be so exercised as to interfere
with any regulation of commerce by
Congress. *
“It has been argued that the act
of New York is not a regulation of
commerce, but is a mere police law
upon the subject of paupers; and it
has been likened to the cases of
health laws, quarantine laws, ballast
laws, gunpowder laws, and others of
a similar nature. A state cannot
make a regulation of commerce to
enforce its health laws, because it is
a means withdrawn from its author-
ity. It may be admitted that it is a
means adapted to the end, but it is
guite a different question whether it
be a means within the competency
of the state jurisdiction. The states
have a right to borrow money, and
borrowing by the issue of bills of
Credit would certainly be an appro-
priate means; but we all know that
the emission of bills of credit by a
state is expressly prohibited by the
constitution. If the power to regu-
late commerce be exclusive in Con-
gress, then there is no difference be-
tween an express and an implied
prohibition upon the states.” Id., 11
Pet. 154. -
1Willson v. Black Bird Creek Marsh
Co., 2 Pet. 245.
§ 299.] POWER TO REGULATE COMMERCE. 349
v. Miln, the owners of a vessel operating under a license from
the United States giving it permission to carry on the coasting
trade was obstructed in its progress by a dam erected under
the authority of the state of Delaware, in the undoubted exer-
cise of its police power, the purpose of the dam being to assist
in draining the marsh, which was a serious menace to health.
The owners of the boat broke down the dam and were sued
in trespass. -
Chief Justice Marshall, delivering the opinion of the court,
remarks: “That the state law authorizes a construction of the
dam, and the act of the legislature shows clearly that it is one
of many creeks on the Delaware shore, where the tide ebbs
and flows; that the value of the property on its bank is much
enhanced by excluding the water, and the health of the in-
habitants probably improved.” He says: “Measures calculated
to produce these objects, provided they do not come into collis-
ion with the acts of the general government, are undoubtedly
within those which are reserved to the states; but the measure
authorized by this act stops a navigable creek, and must be
supposed to abridge the rights of those who have been accus-
tomed to use it. This abridgment, unless it comes into con-
flict with the constitution or laws of the United States, is an
affair between the government of Delaware and its citizens, of
which this court can take no cognizance.”
He indulges in the following obiter: “That if congress had
passed an act, having for its object the regulation of commerce,
which came into conflict with this exercise of the state power,
we should not feel much difficulty in holding the act void.”
But he held, notwithstanding, the licensing of the vessel,
which clearly brought her within a legitimate instrument of com-
merce, and the locus quo was the navigable tide waters, although
within the borders of a state, still the general and exclusive
power of the federal government to regulate commerce did
not necessarily exclude action on the part of a state which
affects commerce.
SEC. 299. The Distinction Between These Cases.—The differ-
ence in principle between these cases is that in Gibbons v. Ogden,
the act of the state was in no sense a police measure." It was
a regulation of commerce and wholly ultra vires, void.
I See Vance v. Vandercook Co., 170 U. S. 488; Hopkins v. United States,
19 Sup. Ct. Rep. 40.
350 PoweR TO REGULATE COMMERCE. [$$ 300, 301.
In Wew York v. Miln the act was clearly a police measure,
but its operation was directly upon subjects of commerce and
nothing else. Held valid.
In the Willson v. Black Bird Creek case the act was a police
regulation; in its main objects it affected other things than
commerce, but it collaterally or incidentally entirely obstructed
navigation. Held valid.
SEC. 300. Fourth Phase — The First Original Package Case:
An Article of Commerce Imported from a Foreign Country.
In Brown v. Maryland' articles of dry goods (cloth) were im-
ported from a foreign country into the state of Maryland. Con-
gress had passed laws regulating its importation. The state
law authorized the exaction of a license as a source of revenue
and regulation of trade, and not as a police measure. The state
law was held to be void, and it was held that it was incident
to the right to import that the owner be allowed to sell in the
original package. No question of police was involved.
SEC. 301. Fifth Phase — The Second Original Package Case.
The License Cases” present another phase in which the ques-
tion of the exclusive power of congress over commerce arises,
and the corresponding police power of the state. In these cases
laws of the states prohibiting or requiring licenses as a condi-
tion of sale of intoxicating liquors were involved. The state
laws were passed in the exercise of the police power. The
liquors were shipped in from sister states. Convictions were
sustained. These cases are quite parallel with Zeisy v. Hardin,”
but were regarded in that case as overruled by Bowman v. C.
dé W. W. Jºy. Co." Be that as it may, the ancient interpretation
from without the state, and that the
State of Iowa could not pass a law
1 12 Wheat. 419.
25 How. 504.
3.135 U. S. 600.
4 125 U. S. 493. The cases noticed
in the note differ in principle from
any of the cases above noted. In
Rhodes v. Iowa, 170 U. S. 412, a stat-
ute of Iowa which required that any
carrier who should transport any in-
toxicating liquors from place to place
in Iowa should suffer a penalty, un-
less he obtain a certificate from the
county auditor of the first point, was
held not to apply to liquors coming
which affected liquor coming from
without; and in that case it was held
that the Wilson bill, which was a
law in effect subjecting all liquors
from without to the same inhibi-
tions placed upon liquors held within
a state, did not prevent the trans-
portation into the state, but did, by
virtue of the Wilson act, prevent the
Sale in the original package. In
Vance v. Vandercook Co., 170 U. S.
438, it was beld a state law of South
§ 302.] IPOWER TO REGULATE COMMERCE. 35T
of the constitution has given way to the demands of modern
traffic.
SEC. 302. Later Change in These Views.-Mr. William Draper
Lewis points out very clearly the line of conflict between the
view of Mr. Justice Story and that of Chief Justice Marshall
as expressed in Gibbons v. Ogden and Willson v. Blackbird Marsh
cases, and very justly remarks that, under the principles an-
nounced by Chief Justice Marshall, there would have been no
logical difficulty in sustaining the constitutionality of the pro-
hibition law of Iowa, held in Zeisy v. Hardin, to be unconstitu-
tional. It was beyond dispute that the Iowa prohibition laws
are properly classed as police measures, and were passed in
good faith for that purpose and not for the purpose of regu-
lating or affecting commerce, and that commerce was not in
any sense regulated thereby, but that the sale of whisky by
any owner in the state was prohibited by the exercise of the
state power, there being at the time no act of congress of the
United States in conflict with the act of the state of Iowa.”
Carolina, which required every resi-
dent of the state who desired alcoholic
liquors for his own use to communi-
cate his purpose to the state chemist,
was unconstitutional in so far as it
deprived any non-resident of the right
to ship, by means of interstate Com-
merce, any liquor into South Caro-
lina. In this case it was argued that
“as the state law here in question
does not forbid, but, on the contrary,
authorizes the sale of intoxicants
within the state, hence it is not a
police law, therefore not enacted in
the exercise of the police power of
the state, and consequently does not
operate upon the Sale of Original
packages within the state.”
1 The state law simply declared
that such articles were not to be sub-
jects of traffic within her borders.
2 Lewis’ Fed. Power Over Com.,
p. 42. It affords me pleasure to ac-
knowledge my indebtedness to Mr.
Lewis.
Marshall's views on the subject, as
expressed in the case of Gibbons v.
Ogden, are as follows: Speaking of
what are known as police regulations,
he says: “No direct general power
Over these objects is granted to con-
gress, and, consequently, they remain
subject to state legislation. If the
legislative power of the Union can
reach them it must be for national
purposes; it must be where the power
is expressly given for a special pur-
pose or is clearly incidental to some
power which is expressly given. It
is obvious that the government of the
Union, in the exercise of its express
powers, that, for example, of regu-
lating commerce with foreign na-
tions and among the states, may use
Imeans that may also be employed by
a state in the exercise of its acknowl-
edged power; that, for example, of
regulating commerce within the
state. If Congress license vessels to
sail from one port to another in the
same state, the act is supposed to be,
necessarily, incidental to the power
expressly granted to congress, and
implies no claim of a direct power
352 POWER TO REGULATE COMMERCE.
[$ 303.
It is now, however, the established law of the United States
that the state cannot, under its police power, prohibit the im-
portation into a state of any commodity which has become the
subject of interstate commerce."
SEC. 303. The General Welfare of the People Subordinate to
the Interests of Traffic.—Notwithstanding our plan to treat
the subject of the police power with the other powers of the state,
it may be here noticed that the grant of the power to the United
States has been extended by construction to the limits of hold-
ing that after an article or commodity of commerce has fin-
ished the course of its travel, has reached its destination, passed
from the hands of the carrier and into the hands of its owner,
it may be sold from hand to hand in the Original package in
which it was imported, even against the prohibition of a state
law and the absence of any law of congress on the subject.
This theory is reached upon the reasoning that it must be
the subject of distribution, else commerce is impeded and ob-
structed.”
to regulate the purely internal com-
merce of a state, or to act directly on
its system of police. So, if a state, in
passing laws On subjects acknowl-
edged to be within its control, and
with a view to those subjects, shall
adopt a measure of the same chair-
acter with one which congress may
adopt, it does not derive its author-
ity from the particular power which
has been granted, but from Some
other, which remains with the state,
and may be executed by the same
means. All experience shows that
the same measures,
scarcely distinguishable from each
other, may flow from distinct pow-
ers; but this does not prove that the
powers themselves are identical. Al-
though the means used in their exe-
cution may sometimes approach each
other so nearly as to be confounded,
there are other situations in which
they are sufficiently distinct to estab-
lish their individuality.” Gibbons v.
Ogden, 9 Wheat. 1, 203.
Or measureS
1 Leisy v. Hardin, 135 U. S. 100.
See next section.
* “That regard be had to the pub-
lic welfare, is the highest law.”
Brown v. Maryland, 12 Wheat. 419,
was the first of the cases directly
bearing on this question. There the
importation was from a foreign
country, and congress had passed a
law on the subject. The state law was
held void. Taney argued in favor of
the state law, but afterward in the
License Cases approved the decision.
In Brown v. Maryland the article
was dry goods and the police power
was not involved. The License Cases
are very different. They involved the
power to prohibit the sale in the
Original package, or to exact a license
fee for such sale as a police measure.
Congress had passed no law in con-
flict with the state law. The state
laws were held valid, Leisy v. Har-
din, 135 U. S. 100, involved the valid-
ity of the Iowa prohibition law, pro-
hibiting the sale of liquor. Held
§ 303.] IPOWER TO REGULATE COMMERCE. 353
The effect of the rule is to reverse the ancient and Venerable
proposition that the chief end of government is the safety,
morality and welfare of the people, and establishes the now
famous rule that all rights and all interests are subordinate to
traffic.
The doctrines which have been crystallized into the maxims
of the law, Salus populà suprema lea, and São utere two ºut alienum,
zon labdas, and the early maxim that all rights and all con-
tracts are held subject to the police power of the state, are an-
nulled.” Commerce is king.
The courts seem to have lost sight of the fact that the sub-
jects of commerce must always be an article of traffic or a pri-
vate contract, involving the carriage or sale of an article of
property or the transportation of persons or things.
Laying aside for a moment the transportation of persons,” the
most dignified transaction of commerce possible can amount to
no more than a transfer of some chattel property.
The police power, until the rise of this new doctrine, was
supposed to override all private interest. It was supposed to
be as thoroughly and exclusively within the power of the state
invalid as to liquor imported from
another state while in the original
package. The history and grounds
of these decisions are examined in
Rhodes v. Iowa, 170 U. S. 412, and
Vance v. Vandercook Co., id. 438. It
is significant to notice that the Li-
cense Cases are not followed, but
treated as overruled.
1 “Enjoy your own property in such
a manner as not to injure that of an-
other person.” See Cooley's Const.
Lim. (6th ed.) 706.
*See Cooley's Const. Lim. (6th ed.)
"708.
3 Slaves not being by the law mer-
chant of the United States regarded
as proper subjects of general com-
merce were not regarded as within
the protection of the clause and were
within another clause. In Shelton
v. Marshall, 16 Tex. 352, Wheeler, J.,
said: “As respects the power of the
states over the subject of the con-
stitutional inhibitions in question
(the introduction of slaves as mer-
chandise), what we deem the Sound
and correct doctrine was stated by
Chief Justice Taney in Groves v.
Slaughter, 15 Pet. 508, viz.: “In my
judgment the power over this sub-
ject is exclusively with the several
states, and each of them has a right
to decide for itself whether it will Or
will not allow persons of the descrip-
tion to be brought within its limits
from another state, either for sale or
for any other purpose; and also to
prescribe the manner and mode in
which they may be introduced, and
to determine their condition and
treatment within their respective
territories; and the action of the
several states upon this subject can-
not be controlled by Congress, either
by virtue of its power to regulate
commerce or by virtue of any other
power conferred by the constitution .
Of the United States.’” Paschal’s An-
notated Const. 109.
23
354 POWER TO REGULATE COMMERCE. [$ 304.
as was the power to regulate commerce invested in the federal
government."
The power to regulate commerce, necessarily assumes that
the article is a legitimate subject of commerce, and necessarily
the federal supreme court must be the ultimate tribunal to de-
cide whether the article is legitimately the subject of commerce
or legitimately an object of police inhibition; but having de-
cided that certain noxious articles, or certain articles, are so
liable to or susceptible of improper use as to be the subject of
police regulation, it would seem to be going beyond the essen-
tial and proper exercise of the regulation of commerce to allow
private corporations or private individuals to inflict upon the
people of the state things noxious, undesirable and deleterious
in their effect either upon the health or morals of the people.
The present state of the law and the course of these decisions
is very clearly set forth in the opinions and dissenting opinions
in Jęhodes v. Jowa ” and Vance v. Vandercook Co.”
SEC. 304. Congress Has No Police Power Over Matters Within
a State.— It has been said by recent writers that “the fact that
the states are in large measure deprived of power to exclude
from their territory persons and property which they consider
hostile to their interests requires that the federal government
should be promptin its effort to give full measure of protection.”*
Just what is intended by this is not clear; but it should be
remembered, in construing the exclusive power of the federal
government over foreign and interstate commerce and com-
merce with the Indian tribes, that the police jurisdiction is
as exclusively in the states as is the commerce power in the
United States, and that in the dual system of the administra-
tion of government, in which different bodies politic exercise
distinct and different powers, the nature of these powers have
been changed by the separation, and that the power of the peo-
ple and the welfare of the people is just as sacred now as it
would be if there were no federal republic.
1 The Oleomargarine — Original ercises of the police power. Paul
Package — cases are distinguishable v. Pennsylvania, Schollenberger v.
in this: that in these cases it is well Pennsylvania, 18 Sup. Ct. Rep. 757.
maintained by the supreme court 2 170 U. S. 412. '
that OleOmargarine is not a noxious 3 Id, 438.
or deleterious article, and that the 4 Prentice & Egan, Com. Cl. 59.
acts of the states are not fair ex- 5 Cleveland v. Augusta, 102 Ga. 233.
§ 305.]
POWER TO REGULATE COMMERCE. 355
The better rule would be to exclude from the privileges of
commerce those articles which are properly classed as noxious,
and to give free and open transport anywhere and everywhere,
untrammeled and unburdened, to those matters not under the
ban, but at the same time whatever was properly inhibited from
barter or sale among the people of a single state, and justly
classed as noxious or deleterious to health or morals, should re-
ceive no sanction of commerce to enter the limits of a state.
That congress has no police power is too well settled to ad-
mit of discussion.
Chief Justice Chase, in United States v. De Witt," says: “As
a police regulation, relating exclusively to the internal trade
of the states, it can only have effect where the legislative au-
thority of congress excludes, territorially, all state legislation;
as, for example, in the District of Columbia. Within state lim-
its it can have no constitutional operation. This has been so
frequently declared by this court, results so obviously from
the terms of the constitution, and has been so fully explained
and supported on former Occasions, that we think it unnecessary
to enter again upon the discussion.”
SEC. 305. Private Contracts Subordinate to Commerce Power.
The power of congress over subjects of interstate commerce
and the means and instruments engaged therein affects not
only the powers of the state, but extends to the restraint and
regulation of private contracts in reference to matters of com-
merce and the methods of conducting it. -
All contracts in restraint of trade and contracts having for
their object unjust discrimination against persons or places are
clearly within the control of congress if the subject-matter of
the contract be properly interstate or foreign commerce, or
commerce with the Indian tribes.
Whatever of doubt may have remained in the minds of the
19 Wall. 41.
? It was held that “the twenty-
ninth section of the Internal Revenue
Act of March 2, 1867 (14 Stat. at
Targe, 484), which makes it a misde-
meanor, punishable by fine and im-
prisonment, to mix for sale naphtha.
and illuminating oils, or to sell or
offer such mixture for sale, or to sell
or offer for Sale oil made of petroleum
for illuminating purposes, inflamma-
ble at less temperature or fire test
than 110 degrees Fahrenheit, is in
fact a police regulation, relating
exclusively to the internal trade of
the states,” and consequently void.
United States v. De Witt, 9 Wall. 41.
See Cooley's Const. Lim. (6th ed.) 706.
356 BOWER TO REGULATE COMMERCE. [$ 306.
managers of great enterprises in reference to how far pools
and combinations might be entered into for the purpose of
maintaining rates and prices is set at rest by two recent de-
cisions of the supreme court of the United States."
It is thoroughly well settled that congress may restrain in-
dividuals from making contracts which directly and injuriously
affect the public and which are made in the exercise of inter-
state commerce.”
Not every contract or every act which indirectly and re-
motely affects interstate commerce, however, is within the
power of inhibition of congress.” -
Statutes which have been so far enacted by congress apply
Only to contracts whose direct and immediate effect is to re-
strain interstate commerce.
It was said by the court in a recent case “that the act of
congress must have a reasonable construction, or else there
would scarcely be an agreement or contract among business
men that could not be said to have indirectly, or remotely,
some bearing upon interstate commerce to restrain it.”*
SEC. 306. Contracts Regulating Traffic by Carriers.-Ex-
perience has shown that the tendency of great corporations is
not only to consolidate in single hands vast aggregations of
capital, but that separate Organizations will combine for the
purpose of preventing competition.
To a certain extent contracts which prevent ruinous compe-
tition are not unlawful,” but with the plenary power which is
invested in congress, it is for congress to determine and regu-
late all interstate rates and traffic; and so it has been recently
settled that there is no constitutional right of the citizen in-
vaded by the acts of congress which restrain individuals and
corporations engaged in interstate commerce from entering
into what are known as “joint traffic contracts,” which have
for their object the prevention of competition and the sustain-
ing of rates. -
1 United States v. Joint Traffic & Hopkins v. United States, 19 Sup.
Ass'n (Oct. 24, 1898), 19 Sup. Ct. Rep. Ct. Rep. 40, and cases cited.
25; United States v. Trans-Missouri 4 Id.
Freight Ass'n, 166 U. S. 290. 5 Greenhood, Pub. Pol. 683.
2 Frisbie v. United States, 157 U. S.
160. *
§ 307.] POWER TO REGULATE COMMERCE. 357
It is said in a recent case that “the prohibition of such con-
tracts may, in the judgment of congress, be one of the reason-
able necessities for the proper regulation of commerce, and con-
gress is the judge of such necessity and propriety, unless, in
case of a possible gross perversion of the principle, the courts
might be applied to for relief. . . . The power to regulate
commerce has no limitation other than those prescribed in the
constitution. The power, however, does not carry with it the
right to destroy or impair those limitations and guaranties which
are also placed in the constitution or in any of the amendments
to that instrument.”"
Notwithstanding the liberty of the citizen to contract, there
are many kinds of contracts not mala in se, or of themselves
immoral, but which may be prohibited by the states or by
congress.” -
SEC. 307. Federal Authority to Protect Property.—The estab-
lished principle is that the general government has not only pow-
ers which are specifically enumerated, but as an incident thereto,
and necessarily flowing therefrom, the right to use every means
necessary and proper to protect and preserve these powers and
to carry them into effect. So, as elsewhere appears, congress
has incidental power to remove dangers by acquiring foreign
territory. The right to create a corporation as an instrument
of carrying on its power to conduct the physical affairs of the
nation is another incidental power.
In the same manner it has not only the right, but it is the
duty of congress, to make efficacious use of all the powers in-
trusted to it. g
It is peculiarly the province of the federal government to
See that the instruments and avenues of commerce are not un-
lawfully impeded. -
The power extends to the right to regulate the methods of
navigation of steam and sailing vessels, the conduct of the busi-
ness of interstate communication by telegraph, the proper and
improper use of the mails,” and, indeed, the protection and reg-
1 United States v. Joint Traffic Brimson, 154 U. S. 447; Counselman
Ass'n, 19 Sup. Ct. Rep. 25. See also v. Hitchcock, 142 U. S. 547.
Navigation Co. v. United States, 148 2. Id.
U. S. 312; Interstate Com. Com. v. 3 Dunlap v. United States, 165 U. S.
486. -
358 IPOWER TO REGULATE COMMERCE. [$ 308.
ulation of all matters legitimately within the scope of inter-
State commerce. -
The fact that the act or contract or conduct which may in-
juriously affect or impede commerce is within the police power
of the state or general powers of the state in reference to the
ownership of property does not prevent the United States from
interfering in all legitimate ways.
It is the duty, therefore, of every department of the govern-
ment to interfere and act promptly in the protection of these
powers. - -
It has been finally decided that it is the duty of the judicial
department to act by legal process of the court to prevent the
obstruction of interstate commerce or interference with the
instruments which the government has chosen for the purpose
of carrying the mails. -
It matters not whether the obstruction is occasioned by a
single individual or combination of individuals." -
SEC. 308. Government by Injunction is Government by Law.
The resort to the courts by individuals and corporations for
protection against alleged invasion of the rights of the com-
plainants, and the granting of relief to them by the courts by
virtue of the writ of injunction, has received in popular phrase
the appellation “Government by injunction.”
There are those who use this phrase as an opprobrious term,
intending thereby to condemn any interference of the courts
with the free exercise of the so-called rights of the people to
assemble, and with clamorous outcry and show of force main-
tain their supposed rights and liberties by means of strikes, by .
which they endeavor to compel the employer to hire certain
individuals and to pay the demanded price, and to refrain from
hiring any and all others. -
To one who reflects upon the long struggle for the establish-
ment of a government of law, as distinguished from a military
administration, or what is called a government of men, it seems
difficult to understand how a free and reflecting people can con-
1 In re Debs, 158 U. S. 564. men or powerful individuals, the
*When the private person is af- process is commended. See Smyth
forded redress against the govern- v. Ames, 169 U. S. 446; Income Tax
ment or against aggregations of Case, 157 U. S. 437.
§ 308.] IPOWER TO REGULATE COMMERCE. 359
demn any resort to the judicial tribunals by any person for any
purpose whatever. -
Not to descend to argument, it may be here noticed that
there was, at the time of the great disturbance out of which
the case of Debs emanated, a great protest and cry against the
interference by the federal executive with local affairs by the
Ilse of federal troops."
On the other hand it is obvious that those who cry against
the use of the federal troops and the interference by the fed-
eral executive, and at the same time abuse the courts for the
exercise of a jurisdiction under the epithet “government by
injunction,” are not desirous of any restraint upon their action,
and hold to the opinion that they must have unbridled license
to be their own protector and the redresser of their own sup-
posed wrongs.
It would seem to all sober and reflecting minds that the
opinion of Mr. Justice Brewer in the Debs case” states clearly
and justly the proper view which the citizen, desirous of the
preservation of our free institutions, should take.
He says, quoting from a Connecticut case: “In Stamford v.
AStamford Horse Railroad Co.,” an injunction was asked by the
borough to restrain the company from laying down its track
in a street of the borough. The right of the borough to forci-
bly remove the track was insisted upon as a ground for ques-
tioning the jurisdiction of a court of equity, but the court
sustained the injunction, adding: “And none the less so because
of its right to remove the track by force. As a rule, injunc-
tions are denied to those who have adequate remedy at law.
Where the choice is between the ordinary and the extraordi-
nary processes of law, and the former are sufficient, the rule will
not permit the use of the latter. In some cases of nuisance,
and in some cases of trespass, the law permits an individual to
abate the One and prevent the other by force, because such
permission is necessary to the complete protection of property
1 The then governor of the state of
Illinois protested against the inva-
sion of his power. But the disturb-
ance continued. -
One may, without intending to
criticise the general government,
wenture the opinion that there has
been too little use made of the fed-
eral troops in every recent disturb-
ance in the protection of citizens of
the United States in their persons
and property and civil rights.
2 158 U. S. 564.
356 Conn. 381.
360 POWER TO REGUIATE COMMERCE. [š 308.
and person. When the choice is between redress or prevention
of injury by force and by peaceful process, the law is well
pleased if the individual will consent to waive his right to the
use of force and await its action. Therefore, as between force
and the extraordinary writ of injunction, the rule will permit
the latter.”
“So, in the case before us, the right to use force does not ex-
clude the right of appeal to the courts for a judicial determina-
tion, and for the exercise of all their powers of prevention.
Indeed, it is more to the praise than to the blame of the gov-
ernment, that, instead of determining for itself questions of
right and wrong on the part of these petitioners and their as-
sociates, and enforcing that determination by the club of the
policeman and the bayonet of the soldier, it submitted all those
questions to the peaceful determination of judicial tribunals of
its rights and powers and the correlative obligations of those
against whom it made complaint. And it is equally to the
credit of the latter that the judgment of those tribunals was
by the great body of them respected, and the troubles which
threatened so much disaster terminated.
“Neither can it be doubted that the government has such an
interest in the subject-matter as enables it to appear as party
plaintiff in this suit. It is said that equity only interferes for
the protection of property, and that the government has no
property interest. A sufficient reply is that the United States.
have a property in the mails, the protection of which was one
of the purposes of this bill. Searight v. Stokes' arose upon a
13 How. 151–169. The act of COn- mails, and Held that the circuit court,
gress of July 2, 1890, gives the remedy
of injunction in cases of conspiracy
to obstruct or destroy interstate Com-
merce, and this is wholly within the
power of congress to grant. United
States v. Elliott, 62 Fed. Rep. 801; Id.,
64 Fed. Rep. 25; Prentice & Egan,
Com. CI., 324.
In the Debs Case, 158 U. S. 564, it
was found that there was an ob-
struction of the artificial highways
for the passage of interstate com-
merce and the transmission of the
had power to issue an injunction.
An injunction will also lie to pre-
vent the chief officers of a labor or-
ganization from enforcing a rule of
their organization which makes the
highest offense against the Order for
a member in the employ of a railroad
company to handle cars received
from another company with which
a conflict sanctioned by such officers.
exists, and where such refusal will
be in direct violation of the interstate-
commerce act, which requires that.
§ 309.] POWER TO REGULATE COMMERCE. 36];
compact between the United States and the state of Pennsyl-
vania in respect to the Cumberland road, which provided,
among other things, ‘that no toll shall be received or collected
for the passage of any wagon or carriage laden with the prop-
erty of the United States.’”
SEC. 309. The Interstate Commerce Act.—Under the general
power to regulate commerce, congress at an early time passed
laws regulating commerce with foreign states and regulations
for the navigation of vessels on the coast and the great inland
Sea S.
The extent of the control of congress over navigable rivers
lying wholly within a state was not understood or determined
until the decision of Gibbons v. Ogden' in 1824.
As pointed out by Judge Cooley in an able exposition of the
regulation of commerce by congress,” it appears that for a great
many years federal power over interstate commerce was exer-
cised chiefly in a negative way, by restraining the action of the
states from infringing on the general powers of the government.
This was usually accomplished by invoking the action of the
judicial department, either in suits to recover damages for the
unlawful exercise of power, or to restrain the threatened exer-
cise of power. tº
For the first half century the interstate commerce was not
of such a nature, or so great in volume, as to require general
and thorough regulation and Supervision by national authori-
ties; but during the last twenty-five years interstate commerce.
has become so varied in its nature, so vast in its volume, com-
there shall be furnished equal facil-\
ities for the interchange of all traffic.
Toledo, A. A. & N. M. R. Co. v. Penn-
sylvania Co., 54 Fed. Rep. 746,
An injunction will lie, even though
the act is a crime, where there is a
Conspiracy of employees to injure and
destroy their employers’ property.
Arthur v. Oakes, 24 C. C. A. 239; 63
IFed. Rep. 310.
Injunction will also lie where rail-
road employees, continuing as such,
refuse to perform their duties, where
Such refusal results in irreparable
loss to the employer, and interferes
with the transmission of the mails
and with interstate commerce; and
in another case it was held that em-
ployees could be enjoined from con-
spiring to quit the employ of the
receiver of a road, where such action
would result in damage and embar-
rassment to the road. See Southern
Cal. R. Co. v. Rutherford, 62 Fed. Rep.
796; Arthur v. Oakes, supra; Farm-
ers’ Loan & Trust Co. v. Northern
Pac. R. Co., 60 Fed. Rep. 803. See
19 Wheat. 1.
2 First Report of Interstate Com-
merce Commission (1887).
Cooke's Trade and Labor Combina-
tions, $ 16.
362 Power. To REGULATE COMMERCE. [$$ 310, 311.
petition so great, and the owners of the instruments of com-
merce so powerful in the enormous aggregate of capital, that
the national congress at last recognized the imperative necessity
of the general regulation of interstate commerce.
Proceeding upon lines so thoroughly established, that con-
gress had the right to make use of any means or instruments
to accomplish the recognized object, congress in 1887 passed
what is known as the Interstate Commerce Act, a brief act of
but twenty-four sections, occupying less than fifteen pages of
ordinary book size.
SEC. 310. Scope of the Act.—The act related entirely to the
business of transportation, and was expressly applied to com-
mon carriers engaged in the transportation of passengers or
property not wholly within a single state.
It defined the word “railroad” to include all bridges and
ferries and all leases of road-beds or rolling stock, and defined
the word “transportation ” to include all the instrumentalities
of shipment or carriage. !
Jºegulation of Rates.—Not every person who, for accommo-
dation or in casual instances, accepts compensation for the
transportation of individuals or property is within the tech-
nical meaning of the words “common carrier.”
A common carrier is one who engages habitually in the busi-
iness of transportation. The common law had long recognized
the existence of common carriers, and the courts of England
had, along with the law merchant as a part of it, worked out
an elaborate code of rules and regulations as to the law of com-
ºmon carriers. fe
Independently of any constitutional provision, common car-
riers, and in fact all persons engaged in a public Occupation,
are subject to the control of the state; but this act was the first
authoritative declaration by congress adopting into it, by impli-
cation at least, a portion of the common law merchant.
SEC. 311. Unjust and Unreasonable Charges are prohibited
by the act, which requires that charges for receiving, delivering,
storage or handling and transportation of passengers or prop-
erty shall be reasonable and just, and every unjust and unrea-
sonable charge for such services is prohibited and declared to
be unlawful.
This section necessarily required that there should be some
§§ 312–316.] PowHR TO REGULATE COMMERCE. 363
scale, standard or measure of what was reasonable or unrea-
sonable, some proper instruments and tribunals through and by
which to enforce its provisions.
SEC. 312. Uniform. Rates Required.—The next section of the
act provided for uniform rates and charges against persons and
for services of a like kind and character, and declared that any
person violating this rule should be guilty of unjust discrimina-
tion, and the same was prohibited and declared to be unlawful.
SEC. 313. Unjust Discrimination Prohibited.— The third sec-
tion specifically prohibits unjust discrimination against locali-
ties or places or descriptions of traffic; also prohibited unjust
discriminations against different carriers who were so situated
as to be connecting lines. - -
SEC. 314. Long and Short Haul Regulation.— The next sec-
tion prohibited such discriminations as would permit a greater
charge for a short haul than would be exacted for a longer
distance over the same line in the same direction.
It, however, recognized that circumstances may require mod-
ification of any general rule; that a short haul in a sparsely set-
tled country may be more expensive to the carrier, and that
other circumstances might modify the general rule.
It therefore provides that, upon application to the commis-
sion appointed under this act, such common carrier may, in
special cases, be authorized to charge less for longer than for
shorter distances. .
The subject of this section has been one of the most prolific
sources of litigation."
SEC. 315. Freight Pools are Prohibited by the fifth section.
Schedules of freight rates and passenger fares are required to
be made public and accessible by printing and hanging in ac-
cessible places in depots and receiving rooms, and it is required
that any changes by way of advance could not be allowed ex-
cepting upon ten days' notice, and charges not in accordance
with the rates so posted and published are prohibited.
SEC. 316. Joint Traffic Contracts and schedules must be filed
with the Interstate Commerce Commission and made public, if
in the judgment of the commission the same is desirable.
Failure to comply with the law and regulations in reference
to the publishing of freight and passenger tariffs was the re-
1 See Sec. 324
364. POWER TO REGULATE COMMERCE. [$$ 317–319.
straint of such common carrier from further transporting or
receiving property, a mandamus to compel compliance with
the provisions, and the power of the courts to enforce their de-
crees by proceedings for contempt.
SEC. 317. I'vasions Prohibited — Private Actions Allowed.—
The seventh section prohibits any shifts or devices by which a
continuous course of transportation should be cut up into short
hauls.
The eighth section allowed a private action of damages by
the person injured by any violation of the act.
The ninth section allowed the injured person an election to
pursue his civil action for damages or to lodge a complaint
with the Interstate Commerce Commission, and provided that
the election of one remedy excluded the other.
SEC. 318. Provisions as to Production of Fvidence.— The
statutes also provided “that, in any such action brought for the
recovery of damages, the court before which the same shall be
pending may compel any director, officer, receiver, trustee or
agent of the corporation or company defendant in such suit
to attend, appear and testify in such case, and may compel the
production of the books and papers of such corporation or com-
pany party to any such suit; the claim that any such testimony
or evidence may tend to criminate the person giving such tes-
timony or evidence shall not excuse such witness from testify-
ing, but such evidence or testimony shall not be used against
such person on the trial of any criminal proceeding.”
Penalties.—The tenth section inflicted penalties for individ-
ual violation by officer, receiver, employee, etc., of the carriers.
SEC. 319. The Interstate Commerce Commission.— The tri-
bunal or board now so familiarly known as the Interstate
Commerce Commission was created by the eleventh Section of
the act just noticed.
It is composed of five commissioners, appointed by the presi-
dent by and with the consent of the senate. The term of office
is six years, except that any person chosen to fill a vacancy is
appointed only for the unexpired term.
Any commissioner may be removed by the president for in-
efficiency, neglect of duty or malfeasance in office.
The influence of party politics is recognized by the provision
§§ 320–322.] POWER TO REGULATE COMMERCE. 365
that not more than three of said commissioners shall be of the
same political party.
The utility of the maxim that no person may be allowed to
act where his interest and integrity comes into conflict is rec-
ognized by the provision: “No person in the employ of or
holding any official relation to any common carrier subject to
the provisions of this act, or Owning stock or bonds thereof,
or who is in any manner pecuniarily interested therein, shall
enter upon the duties of or hold such office.”
Commissioners are prohibited from engaging in any other
business, vocation or employment, and it is expressly provided
that a vacancy in the commission shall not impair the right of
the remaining commissioners to exercise all the powers of the
commission.
SEC. 320. Power and Duty of Commission.—Under section
12 of the act the commissioners are given broad authority
to inquire into the management of the business of all common
carriers, and the commission is required to keep itself informed
as to the manner and method in which the same is conducted,
and shall have the right to obtain from such common carriers
full and complete information necessary to enable the commis-
sion to perform the duties and carry out the objects for which
it was created.
It is given the right, “for purposes of this act, to require the
attendance and testimony of witnesses and the production of
all books, papers, tariffs, contracts, agreements and documents
relating to any matter under investigation.” -
SEC. 321. Co-operative Jurisdiction of the United States Cir-
cuit Courts is required by provisions which allow the commis-
sioners to state to the court the matter under investigation, and
directs the court to issue subpoenas, and compel the attendance
of witnesses and the production of books and papers and the
giving of testimony, etc.
SEC. 322. Nature of the Power Conferred on the Commission.
This section has given rise to several important decisions.
It was at first doubted, and so decided by the circuit courts,
that the duties required of the circuit court under this section
were not judicial, but merely ancillary to a performance of the
functions of an administrative body; but the Supreme court
decided that a controversy and investigation by the Interstate
366 POWER TO REGULATE COMMERCE. [$$ 323, 324.
Commerce Commission was a case of a controversy, within the
meaning of the section of the judiciary act conferring judicial
powers, and in this manner fully established this important
power of the commission."
SEC. 323. The Power to Compel the Giving of Evidence.—
That portion of the section which required a person to testify,
even though he claimed that such testimony might tend to crim-
inate him, but that such evidence should not be used against
such person in the trial of a criminal case, likewise raised a
very important and difficult question, and it was decided that,
under that section as originally framed, witnesses could not be
compelled to testify, notwithstanding the provision which pro-
hibited the use of their testimony.”
In 1893 congress passed an amendment to this section which
gave complete amnesty and immunity from the criminating
effect of any inquisition.
This latter act gave protection commensurate with the con-
stitutional provision and was held valid, and gave to the com-
mission authority essential to the efficacious exercise of its
duty. The distinction between the two sections will appear
in the note.” -
SEC. 324. Power of the Interstate Commerce Commission. Not
Absolute and Final.—The act of congress is intended to com-
mit to the Interstate Commerce Commission the entire subject
of the regulation of traffic by common carriers, and the power
is plenary and complete over all subjects and for all purposes.
It has the right to fix a schedule of rates and to prescribe
1 Interstate Com. Com. v. Brimson,
154 U. S. 447.
2 Counselman v. Hitchcock, 142 U.
S. 547.
3 Brown v. Walker, 161 U. S. 591;
also Tucker v. United States, 151
TJ. S. 164. The section of the act of
February 4, 1887, is as follows: “The
claim that any such testimony Or
evidence may tend to criminate the
person giving such evidence shall
not excuse such witness from testi-
fying; but such evidence or testi-
Imony shall not be used against such
person on the trial of any criminal
proceeding.” That of the act of Feb-
ruary 11, 1893, is as follows: “But no
person shall be prosecuted or sub-
jected to any penalty or forfeiture
for or on account of any transaction,
matter or thing concerning which
he may testify, or produce evidence,
documentary or otherwise, before
said commission, or in obedience to
its subpoena, or the subpoena of either
of them, or in any such case or pro-
ceeding: Provided, that no person so
testifying shall be exempt from pros-
ecution and punishment for perjury
committed in so testifying.”
§ 325.] IPOWER TO REGULATE COMMERCE. 367.
changes in rates, under the section requiring that all rates shall
be reasonable, uniform, etc. -
So it is within their province to determine the reasonable
exercise of discretion in reference to long and short hauls, but
its action is not final and conclusive, being subject to review in
the courts, and the carrier aggrieved may apply to the courts
for redress, if it so choose.
The carrier may take the responsibility of fixing its own rates
and accepting and receiving the freight, in which case the con-
test might be instituted by the shipper or by the Interstate
Commerce Commission; but in the end it is for the courts to
determine whether or not the rates are reasonable, uniform, or
fall within the exception which allows a discrimination under
peculiar circumstances." . -
SEC. 325. Navigable Waters — The High Seas.-The term
“high seas” naturally directs the mind to the ocean or those
great bodies which are called seas; but, for the purpose of
commerce and navigation, as well as for the purpose of juris-
diction and littoral rights, between all of which there exist im-
portant distinctions, the high seas embrace other bodies of
Water, and even streams. : -
Eor example, the great lakes, or navigable streams which
form the boundary lines between two nations, are regarded as
a part of the high seas.
The river St. Marie, for example, is a navigable stream con-
stituting the boundary line between the United States and the
British Dominion of Canada. On its waters may freely pass
the shipping of the United States and of the world.
So, also, is the Detroit river; and, as between the nations of
the world, such streams are regarded as a part of the high seas.”
The important distinction between regarding such a body of
water as a part of the high seas, and simply regarding it as a
A collection of all of the decisions
On the subject of interstate Com-
merce is being made. It has now
1 Interstate Com. Com. v. Ala. Mid.
Ry. Co., 168 U. S. 144. This clause
has given rise to an amount of liti-
gation far beyond the scope of this
treatise to examine in detail. The
treatise by Messrs. Prentice and Egan
to which reference is made treats
quite thoroughly the whole subject,
and is of recent date (1898).
reached seven volumes and is cited
as Interstate Commerce Reports.
2 United States v. Rogers, 150 U. S.
272.
368 POWER TO REGULATE COMMERCE. [$326.
navigable stream, is that while the center is the boundary,
neither has complete sovereignty over any part of the stream,
while both have jurisdiction over it from shore to shore, which
is not confined or measured by the middle thread of the stream,
but extends over every part of it; and in such a case the vessel
sailing on such waters is regarded as a part of the country to
which the citizens owning it belong, or in whose name the
traffic is carried on; that is to say, under what flag the ship
is Sailing.
Important questions growing out of these doctrines threat-
ened the United States in the conflict with Great Britain over
the mouth of the Mississippi river; and so the right of the
United States to freely navigate the St. Lawrence river through
all its course, notwithstanding both its banks, for a long part
of its course, lie within a foreign territory, was claimed, but
the claim was settled by treaty."
The United States has always contended for the right of
free navigation of all the great natural waterways of the world
which connect with the ocean, whether they be lakes or run-
ning streams.
Mr. Clay, secretary of state to President Adams, demonstrated
to the satisfaction of the department, at least, this right, claim-
ing in defense thereof that the act of the congress of Vienna, in
opening the Rhine and other rivers to all nations, showed that
the inhabitants of a country through which such a river passes
have the right to enjoy the navigation of that river to and into
the sea, even though passing through territories of another
power; subject, of course, to proper police regulations prescribed
by the government of the nation through which the river passes.
This principle does not, however, allow all nations to enter
from the Ocean and navigate the stream without permission of
the nation owning the banks.”
SEC. 326. Navigable Waters—Inland Lakes.—Little diffi-
culty arises in the determination of the respective rights of the
states and the United States in reference to the control over
navigable inland lakes. -
If such lakes are navigable in fact, and are adapted to the
* The Apollon, 9 Wheat. 362. 21 Whart. Int. Nat. Law Dig., sec.
º 30. See also 1 Kent's Com. *35.
s 327.] POWER TO REGULATE COMMERCE. 369
use of navigation and commerce, they are without question
Within the dominion and control of the general government."
The question is here to be viewed, not in the light of any
question which may arise as to the littoral” rights of proprie-
tors of the shore of the lake, or as a question of state jurisdic-
tion, but only in the aspect of an instrument of commerce.
SEC. 327. Navigable Waters — Running Streams.-Among
the principal highways, and at one time the chief highways of
commerce, were the streams of the United States.
Under the English common law, it has been stated, although
upon doubtful authority,” that only so much of a stream as felt
the ebb and flow of the tide was to be considered navigable,
and in adopting the common law there was some tendency to
adopt this view; but on account of the difference in circum-
stances, the extent of the country, and the consequent length
of our inland streams, this doctrine has long since been dis-
carded, and the question of navigability is to be decided as a
1 See The Genessee Chief, 12 How.
448; Illinois Cent. Ry. v. Illinois, 146
III. 387; Scranton v. Wheeler, 57 Fed.
Rep. 803.
* See Mahler v. Transportation Co.,
35 N. Y. 352; Donald v. Malloy, 71
N. Y. 546. The word “littoral” is the
appropriate term to designate the
lake shore; “riparian * is applicable
to the bank of a stream.
8 Chancellor Kent held in Palmer
v. Mulligan, 3 Caines, 318, that a river
was not at common law navigable
above the ebb and flow of the tide. He
had ample authority for holding that
the king had title so far as the tide
flowed, but there is doubt, whether
the fact of navigability was not the
test at common law. A writer in
Case and Comment says: Hale in
De Jure Maris does not seem to have
understood that navigability was lim-
ited by the ebb and flow of the tide,
for he treats all navigable rivers, as
well fresh as salt, as public highways.
Neither Woolrych nor Phear limits
navigability to tide water. In Will-
iams v. Wilcox, 8 Ad. & El. 336, Orr
Ewing v. Colquhoun, L. R. 2 App. Cas.
838, and Hines v. Mansfield, Noy, 104,
navigability is recognized as extend-
ing above tide water; while in Rex v.
Montague, 4 B. & C. 590, Miles v.
Rose, 5 Taunt. 706, and Lyon v. Tur-
ner, 1 Cowp. 86, tide water is recog-
nized as being non-navigable; Lord
Mansfield saying in Lynn v. Turner,
eac facto oritur jus: Moreover, only a
few years before Kent made his dec-
laration of the law, the court had,
in the case of Pierse v. Fauconberg,
Burr. 292, left it to the jury to say
whether or not the Tees was navi-
gable above Yarum bridge, without
making the question depend in any
way upon the tide. Kent's view of
the common law prevails, but the
common-law test of navigability is
not generally applied. See Hardin
v. Jordan, 140 U. S. 371, and Water
Power Co. v. Water Commissioners,
168 U. S. 349, where the whole course
of the doctrine may be traced.
24
370 POWER TO REGULATE COMMERCE. [$ 327.
question of fact; that is to say, whether a given stream is sus-
. ceptible of practical use as a medium of commerce."
The navigation of all inland streams, bays and harbors must
necessarily be under the control of the general government,
and it is within the power of the government to make such use
of the bed of the stream as will facilitate commerce; and to
that end it has been decided that obstructions which have been
placed in a stream, such as dams and bridges, may be con-
demned and removed to open the free course of commerce.”
The equitable rights of parties in such cases, which arise by
reason of having built obstructions because of their riparian
ownership, under authority and on the supposition that the
stream was not navigable, based on the fact that the govern-
ment had not formally declared it to be navigable, or had not
taken any steps which indicated such a view, must be re-
spected,” because the mere fact of the navigability of a stream
does not affect the rights of the riparian owner until such a
time as his right conflicts with that of the general govern-
ment.*
The power of the government is very broad. It has been
held that one of several channels of a stream may be closed
in order to improve navigation in another.” -
This power of the general government over navigable waters
lying wholly within the boundary of a state is equally Supreme
and absohute. A
Congress may determine and declare what constitutes an ob-
struction or interference with the rights of navigation.
It may prescribe what acts shall be performed and what
public works may be constructed in order to prevent injury
thereto, and it may enforce these regulations even though the
1 Water Power Co. v. Water Com-
missioners, 168 U. S. 349. A very fine
presentation of the control of con-
gress Over navigable streams is given
by Messrs. Prentice & Egan in their
Commerce Clause, pp. 95–137.
2 See Scranton v. Wheeler, 57 Fed.
Rep. 803.
8 Monongahela Nav. Co. v. United
States, 148 U. S. 312.
4The subject of boundary riparian
rights of individuals will be treated
under the head of real property,
where the matter most frequently
arises, not as a regulation of com-
merce, but as a conflict between indi-
vidual and public right.
5 South Carolina v. Georgia, 93 U.S.
4. See Pennsylvania v. Wheeling I.
B. Co., 18 How. 421, and cases cited
in 57 Fed. Rep. 814, 815.
§ 327.] POWER TO REGULATE COMMERCE. 371
effect thereof is virtually to deprive persons of the right to
use their property in the Way it had theretofore been used, and
in that manner practically deprive them of the means of liveli-
hood. Such has been the effect of the acts of congress and
their delegated agencies exercised in the protection of navigable
streams on the borders of which mining operations are con-
ducted; but the right of the general government is now thor-
oughly established and determined, and it follows that private
contract and private ownership must be held subject to the
commerce power of the general government."
1 North Bloomfield Gravel Min. Co.
v. United States, 88 Fed. Rep. 664.
In a case tried in the United States
district court for the Northern Di-
vision of Illinois, where the question
arose as to the right to dam the Rock
river for the purpose of diverting a
part of the water of the stream from
its channel for the purpose of feeding
the Illinois and Michigan canal, the
court held that such complete di-
version might be resorted to, and
amounts to the right to destroy one
stream to create another.
CIIAFTER XVII.
EINANCE AND CURRENCY,
. “A simple invention it was in the old world Grazier, sick of lugging
his slow ox about the country till he got it bartered for corn or oil, to
take a piece of leather, and thereon scratch or stamp the mere figure
of an ox (or Pecus); put it in his pocket and call it Pecunia, Money.” –
Carlyle.
SEC. 328. Power to Borrow and Coin Money and Punish
Counterfeiting.—Among the express powers given to congress
by the constitution are those enumerated under the heading
“To borrow money on the credit of the United States,” and “to
coin money, regulate the value thereof and of foreign coin, and
fix the standard of weights and measures,” and to provide for
the punishment of counterfeiting the securities and current
coin of the United States.” -
The powers expressed in these different clauses of the consti-
tution—the power to borrow money and of coining and regu-
lating the value of domestic and foreign coin — are treated by
the supreme court as analogous powers, and as falling within
the general power and duty of congress to provide a currency
for the whole country and to protect the same.*
SEC. 329. The Power to Borrow Money.—The power to bor-
row money is exercised in its simplest form by procuring a
direct loan and issuing a promise to repay; but the power to
borrow money by the government may be effected according
to the custom of nations in various ways; and in accordance
with the canon of construction so often mentioned and so
thoroughly established, that all means may be used which are
legitimate to accomplish a given end, unless the means are spe-
cially prohibited any of the various devices may be resorted to.”
1 Const. U. S., art. I, Sec. 8, p. 2. 5This was the specific subject under
2 Id. 5. consideration when the former rule
3 Id. 6. was announced. McCulloch v. Mary-
4 Juilliard v. Greenman (Legal Ten- land, 4 Wheat. 316.
der Case), 110 U. S. 421.
§§ 330, 331.] FINANCE AND CURRENCY, 373.
The United States government has resorted to various meas-
ures to accomplish the powers given in express terms. The
power to borrow money on the credit of the United States, and
the power to coin money, regulate the value thereof and of for-
eign coin, are not given simply for the sake of exercising them.
They are but the means of effectuating the objects for which
the constitution was adopted.
The specific object is to provide a national currency, and es-
tablish a system of credit and exchange by which the fiscal
affairs of the nation and of individuals may be so arranged as
to establish the national credit, fund and liquidate the national
indebtedness, provide means for the common defense, and assist
in the regulation and exercise of foreign and interstate com-
IOleI*Ce.
SEC. 330. Methods of Eacercising the Power.—The borrowing
of money by the use of bonds, and pledging the credit of the
United States directly, needs no further mention here, other
than to redirect attention to the principle that the general gov-
ernment has the power to protect such loans from injury, di-
rectly or indirectly, by the exercise of the taxing power of the
state as a means of effectuating and establishing the credit of
the United States, and of making this credit an efficient instru-
ment in the execution of the power given or implied.
In the power to borrow money, and the power to coin money
and regulate the value thereof, is involved the issuing directly
by the United States of its own treasury notes, or what are
called the paper money of the United States, redeemable by
the general government, and also the establishment of national
banks, by which private individuals are allowed to engage in
the business of banking,' and at the same time issuing, under
regulation and restriction, pledges of the credit of the United
States, which pass from hand to hand as money, bearing on their
face the mint mark of genuineness and of value implied in the
pledging of the credit of the United States to their redemption.
SEC. 331. National Banks.- The constitutionality of the
laws allowing the creation of national banks is no longer open
to question.
These national banks are in fact, and are held to be, but in-
1 McCulloch v. Maryland, 4 Wheat. 316.
374. FINANCE AND CURRENCY, [$ 332.
struments and means adapted to, and properly adopted for, the
purpose of providing a circulating medium and regulating the
finance of the country."
As such instruments of commerce and government agencies,
they are free from any prejudicial action on the part of the
states, either by way of taxation or by way of penalties to be
imposed upon them as such.”
It does not follow, however, that the capital stock of or shares
in a national bank are not subject to taxation.”
A tax by the United States on the circulation of a national
bank is not a revenue bill within the rule that requires that
such bills shall originate in the house.”
A state cannot, under the usury laws, inflict penalties upon
national banks.”
SEC. 332. The Utility of the National Banking System.—
The policy of the national banking system is too thoroughly
established to need any discussion whatever, and any discussion
of its policy would be but the expression of individual opinion,
open to the criticism which must needs attend the utterance of
any person upon a question upon which political parties divide.
It may not be out of place, however, to revert very briefly
to opinions antedating even the present constitution in refer-
ence to the utility of national a bank.
Mr. Justice Wilson, discussing this question, says:
“Let us turn our attention to some of the most material ad-
vantages resulting from a bank.
“1st. It increases circulation and invigorates industry. ‘It
is not,” says Dr. Smith, in his Treatise on the Wealth of Na-
tions,” “by augmenting the capital of the country, but by ren-
dering a greater part of that capital active and productive than
would otherwise be so, that the most judicious operations of
banking can increase the industry of the country. The part
of his capital which a dealer is obliged to keep by him unem-
ployed, and in ready money, for answering occasional demands,
1 Farmers’ & Mech. Nat. Bank v. 4Twin City Bank v. Nebeker, 167
Dearing, 91 U. S. 29. TJ. S. 197.
2 McCulloch v. Maryland, 4 Wheat. 5 Farmers' & Mech. Nat. Bank V.
316. Dearing, 91 U. S. 29.
3 New Orleans v. Citizens’ Bank, 6 Vol. 1, pp. 483, 484.
169 U. S. 361. See also California,
Bank v. Kennedy, 167 U. S. 362.
§ 333.] FINANCE AND CURRENCY. 375
is so much dead stock, which so long as it remains in this situa-
tion produces nothing either to him or to his country. The
judicious operations of banking enable him to convert this dead
stock into active and productive stock; into materials to work
npon, into tools to work with, and into provisions and subsist-
ence to work for; into stock which produces something, both
to himself and to his country. The gold and silver which cir-
culates in any country, and by means of which the produce of
its land and labor is annually circulated and distributed to the
proper consumers, is, in the same manner as the ready money
of the dealer, all dead stock. It is a very valuable part of the
capital of the country which produces nothing to the country.
The judicious operations of banking, by substituting paper in
the room of a great part of this gold and silver, enables the
country to convert a great part of this dead stock into active
and productive stock; into stock which produces something to
the country. The gold and silver money which circulates in
any country may very properly be compared to a highway,
which, while it circulates and carries to market all the grass
and corn of the country, produces, itself, not a single pile of
either. The judicious operations of banking, by providing, if
I may be allowed so violent a metaphor, a sort of wagon-way
through the air, enables the country to convert, as it were, a
great part of its highways into good pasture and corn-fields,
and thereby to increase very considerably the annual produce
of its land and labor.”
SEC. 333. Paper Money as Viewed Before the Constitution.—
“The same sensible writer informs us in another place' that
‘the substitution of paper in the room of gold and silver
money replaces a very expensive instrument of commerce with
One less costly, and sometimes equally convenient. Circulation
comes to be carried on by a new wheel, which it costs less both
to erect and to maintain than the old one. There are several
sorts of paper money, but the circulating notes of banks and
bankers is the species which is best known, and which seems
best adapted for this purpose.’ ‘These notes come to have the
same currency as gold and silver money, from the confidence
that such money can at any time be had for them.’”
1 Vol. 1, pp. 435–36. 21 Wilson's Works, 569.
376 FINANCE AND CURRENCY. [$ 334.
SEC. 334. The Methods Sanctioned Legal Tender Notes."—This
branch of the question, namely, the power to borrow money,
may be passed with a quotation from the latest of the Legal
Tender Cases: * -
“Congress, as the legislature of a sovereign nation, being ex-
pressly empowered by the constitution “to lay and collect
taxes, to pay the debts and provide for the common defense
and general welfare of the United States,’ and ‘to borrow
money on the credit of the United States,’ and ‘to coin money
and regulate the value thereof and of foreign coin;' and being
clearly authorized, as incidental to the exercise of those great
powers, to emit bills of credit, to charter national banks, and
to provide a national currency for the whole people, in the
form of coin, treasury notes, and national bank bills; and the
power to make the notes of the government a legal tender in
payment of private debts being one of the powers belonging to
sovereignty in other civilized nations, and not ea pressly with-
held from congress' by the constitution,--we are irresistibly im-
pelled to the conclusion that the impressing upon the treasury
notes of the United States the quality of being a legal tender
in payment of private debts is an appropriate means, conducive
and plainly adapted to the execution of the undoubted powers
of congress, consistent with the letter and spirit of the consti-
tution, and therefore, within the meaning of that instrument,
‘necessary and proper for carrying into execution the powers
1 “The Second Subdivision. Of the
same section of the constitution au-
try to be selected at pleasure, the
lender having first bought this right
thorizes congress ‘to borrow money
On the credit of the United States.”
IHere the meaning of the word
‘money’ is necessarily somewhat dif-
ferent. ‘Money,” says Mr. J. Stuart
Mill, in his Principles of Political
Economy (vol. 2, book 3, ch. 8, p. 9),
‘which is so commonly understood
as the synonym of wealth, is more
especially the term in use to denote
it when borrowing is spoken of.
When one person lends to another, as
well as when he pays wages or rent
to another, what he transfers is not
the mere money, but a right to a cer-
tain value of the produce of the coun-
by giving for it a portion of his cap-
ital. What he really lends is so
much capital; the money is the mere
instrument of transfer. But the cap-
ital usually passes from the lender to:
the receiver through the means either
of money or of an order to receive
money; and at any rate it is in money
that the capital is computed and
estimated. Hence, borrowing cap-
ital is universally called borrowing:
money.’” Metropolitan Bank v. Van
Dyck, 27 N. Y. 491.
2 Juilliard v. Greenman, 110 U. S.
421.
§ 335.] TINANCE AND CURRENCY.
377
vested by this constitution in the government of the United
States.”!
SEC. 335. Legal Tender Paper Money Not a Mere War
Measure.—“Such being the conclusion in matter of law, the
question whether at any particular time, in war or in peace,
the exigency is such, by reason of unusual and pressing de-
mands on the resources of the government, or of the inadequacy
of the supply of gold and silver coin to furnish the currency
needed for the use of the government and of the people, that
it is, as a matter of fact, wise and expedient to resort to this
means, is a political question to be determined by congress
when the question of exigency arises, and not a judicial ques-
tion, to be afterwards passed upon by the courts. To quote
once more from the judgment in McCulloch v. Maryland: *
‘Where the law is not prohibited and is really calculated to
effect any of the objects intrusted to the government, to un-
dertake here to inquire into the degree of its necessity would
be to pass the line which circumscribes the judicial depart-
ment, and to tread on legislative ground.”
1 This is adopting precisely, the
ground and reasoning of Mr. Justice
Wilson stated in his argument in
favor of the Old Bank of North Amer-
ica. He says: “To many purposes
the United States are to be consid-
ered as one undivided, independent
nation, and as possessed of all the
rights and powers and properties by
the law of nations incident to such.
“Whenever an object occurs, to
the direction of which no particular
state is competent, the management
of it must of necessity belong to the
United States in congress assembled.
There are many objects of this ex-
tended nature.
“In the earlier Legal Tender Cases
(12th Wallace), Justice Strong stated
that in investigating the powers con-
ferred by the constitution, it is indis-
pensable to keep in view the objects
for which those powers were granted;
and at page 533, after reciting the
language of Chief Justice Marshall,
he continues: ‘It would appear to be
a most unreasonable consideration of
the constitution which denies to the
government created by it the right
to employ every means not prohibited
necessary for its preservation and
for the fulfillment of its acknowl-
edged duties.”
“Justice Bradley, in his concurring
opinion in the same case, after ex-
pressing his views as to the nature.
of the government, says: ‘Such being
the character of the general govern-
ment, it seems to be a self-evident.
proposition that it is invested with
those inherent and those implied
powers which, at the time of adopt-
ing the constitution, were considered
to belong to every governinent as
such, and as being essential to the
exercise of its functions.” There is.
a common opinion that the legal ten-
der acts were an exercise of a power
beyond anything involved in the
opinions of Chief Justice Marshall,
and, strictly Speaking, such is the
case.” See 1 Wilson’s Works, 558,
and note.
24. Wheat. 423,
378 FINANCE AND CURRENCY.
[$ 336.
“It follows that the act of May 31, 1878, chapter 146, is con-
stitutional and valid; and that the circuit court rightly held
that the tender in treasury notes, reissued and kept in circula-
tion under that act, was a tender of lawful money in payment
of the defendant’s debt to the plaintiff.” "
SEC. 336. To Coin Money.—The strict constructionist would
see in the use of the word coin, preceding the word money, a
restriction on the power of congress, in the making of money,
to a circulating medium made of metal to be coined in the
mints of the government.” The power as construed means
rather create than merely coin; coining is but one of the means
of creating.
That may be money which is not considered or recognized
as a legal tender for debts. Thus, in the United States, gold
and silver coin and United States notes are considered as money.
Gold coin has always been regarded as a legal tender, silver in
a restricted sense, and paper likewise.” g
The word money is often used as applicable to other media
of exchange. Bank notes actually current are treated as
1 Juilliard v. Greenman (Legal Ten-
der Case), 110 U. S. 421.
2*The congress of the United States
has power, by the eighth section of
the first article of the constitution,
“to coin money and regulate the
value thereof, and of foreign coin.”
The term money is used in different
places in the constitution, as it is else-
where, in somewhat different senses.
THere, however, it means, in my judg-
ment, metallic money, gold, silver
and copper, or the metals used for
coin, and nothing more. The phrase
“coining' cannot, without violence,
be applied to the issue of paper
money. To coin money is to make,
stamp and issue coins as money.
Coins are pieces of metal, of a partic-
ular weight and standard, and to
which a particular value is given in
account and payment. The clause
which follows, “to regulate the value
thereof,” evidently means to author-
ize the regulation of the value of
the coin thus issued, or the money
coined, and that this is strictly me-
tallic money appears from the words
immediately following, ‘and of for-
eign coin.” The design was to confer
upon congress the power to regulate
the yalue of domestic and foreign
Coins, and as the domestic money
whose regulation is thus conferred
upon congress is the money whose
coinage is authorized by the first
part of the clause, the inference is
irresistible that this money is simply
domestic coin or metallic money.
The clause Confers upon Congress ab-
solute and exclusive power over the
circulating coin of the country, do-
mestic and foreign, by regulating the
standard and coimage of the former
and the value in account Of the lat-
ter.” Metropolitan Bank v. Van Dyck,
27 N. Y. 490.
3 Woodruff v. Mississippi, 162 U. S.
300.
§ 337.] FINANCE AND CURRENCY. 379
money, because allowed to circulate as such through the chan-
nels of trade and commerce unquestioned. -
It may be taken as established that congress has the power
to designate the media of exchange which shall constitute
Imoney.
SEC. 337. The Legal Tender Attribute.—The power of the
United States to impress upon its paper currency the quality
of legal tender has passed beyond the range of discussion.
The result and conclusion is well expressed in the opinion of
Mr. Justice Grey in the latest Legal Tender Case:
“The constitutional authority of congress to provide a cur-
rency for the whole country is now firmly established. In
Veazie Bank v. Fenno,” Chief Justice Chase, in delivering the
opinion of the court, said: ‘It cannot be doubted that under
the constitution the power to provide a circulation of coin is
given to congress. And it is settled by the uniform practice
of the government, and by repeated decisions, that congress
may constitutionally authorize the emission of bills of credit.”
Congress having undertaken to supply a national currency con-
sisting of coin, of treasury notes of the United States, and of
the bills of national banks, is authorized to impose on all state
banks or national banks or private bankers, paying out the
notes of individuals or of state banks, a tax of ten per cent.
upon the amount of such notes so paid out. Veazie Bank v.
JFenno, above cited; Wational Bank v. United States.”
“The reason for this conclusion was stated by Chief Jus-
tice Chase, and repeated by the present chief justice, in these
words: ‘Having thus, in the exercise of undisputed constitu-
tional powers, undertaken to provide a currency for the whole
country, it cannot be questioned that congress may, constitu-
tionally, secure the benefit of it to the people by appropriate
legislation. To this end, congress has denied the quality of
legal tender to foreign coins, and has provided by law against
the imposition of counterfeit and base coin. On the community.
To the same end, congress may restrain, by suitable enactments,
the circulation as money of any notes not issued under its
own authority. Without this power, indeed, its attempts to
1 Juilliard v. Greenman, 110 U. S. 28 Wall. 533, 548.
421. 3101 U. S. 1,
380 * FINANCE AND CURRENCY. [$ 338.
secure a sound and uniform currency for the country must be
futile.”! \
“It appears to us to follow, as a logical consequence, that
congress has the power to issue the obligations of the United
States in such form, and to impress upon them such qualities
as currency for the purchase of merchandise and the payment
of debts, as accord with the usage of sovereign governments.
The power, as incident to the power of borrowing money and
issuing bills or notes of the government for money borrowed,
of impressing upon those bills or notes the quality of being a
legal tender for the payment of private debts, was a power
universally understood to belong to sovereignty, in Europe and
America, at the time of the framing and adoption of the con-
stitution of the United States. The governments of Europe,
acting through the monarch or the legislature, according to
the distribution of powers under their respective constitutions,
had and have as sovereign a power of issuing paper money as
of stamping coin.”” i -
SEC. 338. To Regulate the Standard of Value.—Among the
great questions which at the present time divide the people
into two great parties is the question relating to the nature of
the power of congress to create a standard of value by which
to establish a ratio between the two principal metals which
have from time immemorial constituted the principal media in
Our financial system.
The very words used indicate that in the process of regula-
tion some standard must be adopted. This may or may not
approximate the commercial value of the commodity used as a
medium of exchange.
It is also well understood at the present time that under-
neath, and upon which rests the stability of the currency, is the
assurance of the nation given to foreign nations and to its own
citizens to maintain the value of its media of exchange. In
the same manner in which we have heretofore seen that no
particular section of the constitution can be consulted and
viewed isolated from the rest, so in this instance we see the
next clause of the section quoted making the sentence read
18 Wall. 549. Also National Bank 2 Legal Tender Case, 110 U. S. 445–
v. United States, 101 U. S. 6. 447.
§ 339.] FINANCE AND CUFRENCY. 381
“that congress has the power to regulate the value of money
and of foreign coin.”
The relation of these two clauses in this sentence naturally
suggests in connection with the last sentence, namely, that con-
gress shall regulate the value of foreign coin, that something
is intended other than the mere regulation within our territorial
limits.
This is not like regulating the use, the regulation of manu-
factures, the regulation of commerce, traffic or exchange, but
is the regulation of value. .
Is there not some principle discoverable in accordance with
which a standard of value must be regulated, i.e., adopted, es-
tablished P
Nothing is more common at the present day than to hear dis-
cussed the question of a double standard of values.
There is no authoritative declaration on the subject except
by congress, and in the absence of any utterance by it we may
submit the opinions of others and allow the reader to give
them such weight and sanction as his judgment dictates.
Referring for a moment to the object of the power in ques-
tion, namely, the power to coin money and regulate the value
thereof, we may change the phrase somewhat and use it as an
equivalent to a power to create money. In the light of the
exercise of the fiat to impress the legal-tender quality upon
paper currency the expression is allowable. *
Money, as all must admit, is always spoken of as a medium of
exchange. Men do not traffic in money: they traffic with it;
and in the same manner in which artificial attributes are im-
parted by law to persons and things, so artificial attributes
are impressed upon the media of exchange, and this artificial
capacity gives it the power, the quality, the designation of
money. -
SEC. 339. A Standard Must be International.— Mr. Justice
Field, quoting Mr. Webster, gives, it is believed, the true basis
upon which to rest a standard, and the Only feasible method
for regulating the value of coin. He says: “The circulat-
ing medium of a commercial community must be that which
is also the circulating medium of other commercial commu-
nities, or must be capable of being converted into that me-
382 FINANCE AND CURRENow. [$ 339.
dium without loss. It must also be able not only to pass in
payments and receipts among individuals of the same society
and nation, but to adjust and discharge the balance of ex-
changes between different nations. It must be something that
has a value abroad as well as at home, by which foreign as
well as domestic debts can be satisfied. The precious metals
alone answer these purposes. They alone, therefore, are money;
and whatever else is to perform the functions of money must
be their representative and capable of being turned into them at
will.
So long as bank paper retains this quality it is a substi-
tute for money. Divested of this, nothing can give it that
character.” 1
1 Woodruff v. Mississippi, 162 U. S.
300–307.
That this position is the true one
is shown by the consensus of opinion
of other great statesman opposed to
Mr. Webster on most other questions.
In Senator Benton’s great speech
of 1834, in which he reviewed the
history of the currency of the United
States, may be found the facts ad-
mitted by all, which show the true
course of history on the subject of
the regulation of value as well as its
effect upon the circulation of gold.
When the constitution was adopted
we had no mint nor any coins.
Within two months after the open-
ing of congress in 1789, a statute was
passed providing that gold coins of
all nations which equaled those of
England, France, Spain, and Portu-
gal in finemess were to be current at
eighty-nine cents the penny-weight,
and silver coins of all nations which
equaled the Spanish dollar in fine-
mess were to be current at One hun-
dred and eleven cents the Ounce.
BIere the standard of both gold and
silver was fixed by a reference to for-
eign standards. -
Under these provisions a great in-
flux of gold followed. Senator Benton
says: “These early statutes, added to
historical recollections, could leave
Ino doubt of the true meaning of the
Constitution, and that foreign coins
were intended to be forever current
within the United States.”
This measure of value continued
until changed in accordance with
Mr. Hamilton’s famous report, which
should always be considered in con-
nection with his views on themational
bank and paper money.
Joining with Senator Benton in the
sentiment which he expresses so elo-
quently: “God forbid,” said he, “that
I should do injustice to Gen. Hamil-
ton—that I should say or insinuate
aught to derogate from the just fame
of that great man! He has many
titles to the gratitude and admiration
of his countrymen, and the heart
could not be American which could
dishonor or disparage his memory.
But his ideas of government did not
receive the sanction of general appro-
bation; and of all his political tenets,
his attachment to the paper system.
was most strongly opposed at the
time, and has produced the most last-
ing and deplorable results upon the
country. In the year 1791 this great
man, then secretary of the treasury,
brought forward his celebrated plan
for the support of public credit —
that plan which unfolded the entire
scheme of the paper system, and im-
§ 339.]
FINANCE AND CURRENCY. - 3S3,
The principle to be deduced is the one upon which those
who adopted the early standard of value, using gold as that
standard, or by adoption of a value supposed to correspond with
the value fixed by the great commercial powers of the world.
mediately developed the great polit-
ical line between the Federalists and
the Republicans.”
A national bank was the leading
feature of the plan, and making the
national bank note receivable at par
for all duties, debts and excises to
the government placed these notes
practically upon par as legal tender,
though not expressly so.
In his report Secretary Hamilton,
proposing the establishing of a mint,
recommended that the relative value
of gold to silver should be fixed at
fifteen for one, and that recommen-
dation became the law, and remained
the law until 1834, when it was
changed to a trifle over sixteen to
one, and in 1837 at its present ratio
of nearly sixteen to one (exactly
15.988 to One).
At this time (1791) the relative
values of these metals in Spain and
Portugal was sixteen to one, making
our standard six per cent. below all
gold-producing countries.
The fixing of a ratio, always a diffi-
cult and nice question, says Mr. Ben-
ton, was more difficult then, in 1792,
because of the difficulty of obtaining
exact knowledge of the relative value
of these metals at that time in Eng-
land and France; and Mr. Gallatin
has since shown that the information
which was relied upon (by Hamilton)
was clearly erroneous.
Hamilton, Jefferson, Robert Mor-
ris, and in fact all of the financiers,
are agreed upon the disastrous result
likely to attend any mistake in the
relative value of the two metals, as
well as the basis upon which the value
must be fixed or regulated.
That the fatal result followed is a
mere matter of history, and stable
currency was never attained until
the re-adjustment of the standard to
correspond with the valuation of the
metal by the great commercial na-
tions.
Mr. Benton sums up the matter
thus: “It is not to be supposed that
gold will come from these countries
to the United States if the importer
is to lose one dollar in every sixteen
that he brings; or that our own gold
will remain with us when an ex-
porter can gain a dollar upon every
fifteen that he carries out. Such a
result would be contrary to the laws
of trade; and therefore we must
place the same value upon gold that
other nations do if we wish to gain
any part of theirs, or to regain any’
part of our own.” Benton’s View,
vol. 1, p. 443.
Further On Mr. Benton made his ac- .
knowledgments to the great apostle
of American liberty (Mr. Jefferson),
for the wise, practical idea that the
value of gold is a commercial ques-
tion, to be settled by its value in
other countries.
“These three clauses,” he said,
“were concurrent, and put foreign
coin and domestic coin upon the same
precise footing of equality in every
particular which concerned their cur-
rent circulation, their value and their
protection from counterfeiters.”
Bresident Jackson, in his message
of December 6, 1836, speaking of the
currency, says that “it is apparent
from the whole text of the constitu-
tion that it was the purpose of the
convention to establish a currency
consisting of precious metals. These,
from their peculiar properties, which
rendered them the standard of value
in all other countries, were adopted
384. FINANCE AND CURRENCY, [$ 339.
Investigation will show that such changes as have been
made in the gold standard have been to approximate more
closely this universal standard, so that the gold coin of the
realm might pass the world over in exchanges of commodities."
It is true that metal ancillary to the standard has not been
impressed with a universal measure of value.
One of the political parties has advocated an agreement
with the foreign powers of such a standard as will put silver
on a fixed relative basis with gold, and has professed a desire
to accomplish the establishment of a certain fixed ratio as soon
as such an agreement can be arrived at with foreign nations,
but at the present time all such efforts have been unavailing.
Others who seem to disregard the necessity for the adoption
in this, as well to establish its com-
mercial standard, in reference to for-
eign countries, by a permanent rule,
as to exclude the use of a mutable
medium of exchange, such as of Cer-
tain agricultural commodities, rec-
ognized by the statutes of some states
as a tender for debts.”
Is it not obvious that these remarks
in reference to gold apply equally to
silver? and that, until a uniform ratio
of silver can be agreed upon between
the great commercial nations of the
world, no fixed, unvariable standard
can, by the force of a fiat, give an
immutable, unchanging value to a
silver coin? Is not the principle clear
that this clause in the constitution,
to regulate the value of domestic and
foreign coin, requires that it should
be fixed with reference to foreign
values 2
1 Ratio of 16 to 1.—In the propor-
tion of 16 grains of silver to 1 of
gold, or more precisely, of 15.988 to 1;
that is, a silver dollar contains 371.25
grains of pure silver, and a gold dol-
lar 23.22 grains of pure gold, there
being 16 grains in the former to 1 in
the latter.
Origin of the Ratio.— Fixed by law
in 1792 at 15 to 1, representing the
relative commercial values of the
metals; changed to 16.002 to 1 in
1834, and to the present ratio in 1837.
Grains in a Gold Dollar.—23.22 of
pure gold and 2.58 of alloy. No gold
dollars are now coined; but this is
the proportion in eagles, double-
eagles, half-eagles and quarter-eagles.
Grains in a Silver Dollar.—371.25
of pure silver and 41.25 of alloy.
Value of Gold in Various Coun-
tries.—The Hon. M. L. Muhleman, of
the United States sub-treasury, New
York, says the grain of gold is of the
same value in the civilized world; it
is “the international standard; even
silver is now measured by it alone in
international transactions.”
Value of Silver in Various Coun-
tries. –It is not uniform as gold.
The most prevalent standard is the
Mexican dollar, which contains 377.17
grains of pure silver, nearly 6 grains
more than our dollar. As silver
changes constantly in value so does
the Mexican dollar. Its purchasing
value in this country, though con-
taining more silver than our own,
is but little more than fifty cents, be-
cause Our Own Silver is maintained
at a parity with gold by the promise
of the nation to redeem it in gold at
its face value, irrespective of its com-
mercial value by weight.
§ 339.] FINANCE AND CURRENCY, 385
of a valuation with reference to the desires and needs of foreign
countries seek to establish an artificial valuation by the United
States, without reference to this seemingly essential element in
fixing any legal standard of silver coin of the United States.
The matter may be left with the query whether, without
the prohibition upon the use of foreign coins within the United
States, a fixed standard can be safely given to the baser metal.
No question need be asked as to the other phase, for it is
obvious that no artificial fiat of the American congress can fix
any standard of value of American silver in the foreign ex-
changes and markets of the World.
25 *
CHAPTER XVIII.
BANKRUPTCY AND INSOLVENCY,
SEC. 340. Origin of the Power and Ancient Law.— Among
the powers granted to congress is one to establish uniform laws
on the subject of bankruptcy throughout the United States.
When it is remembered that the subject of bankruptcy was
in England confined in its operation to merchant traders, and
relates peculiarly to the extinguishment of all further remedies
in reference to debts contracted by merchants, it seems strange
that such a power should have been given to the general gov-
ernment. It is still more peculiar that the subject was not
thrown in close connection with the subject of commerce rather
than drawing it in juxtaposition with the subject of naturali-
Zation."
It will be found by an examination of English and our own
text-books that the subject of bankruptcy is generally treated
among the means by which contracts are discharged. So in
Kent's Commentaries it is treated as a means of transferring
personal property.”
General provisions have existed in the laws of most civilized
nations for the purpose of relieving unfortunate debtors from
the perpetual burden of their debts.
The year of jubilee, under the Jewish dispensation, not only
gave complete immunity against personal demands, but in many
instances restored to the debtor that which was pledged for
the debt; in modern times this privilege was extended only to
persons who were known as traders. The barbarous provision
of the twelve tables, which allowed the selling or even cutting
in pieces of unfortunate debtors, gave way to more humane pro-
visions.
It is noticeable, however, that early English statutes did not
proceed upon the ground of humanity, or upon the same ground
1 See Federalist, No. 42. 21 Kent’s Com. 477; 2 Blk. Com.,
ch, 31.
§ 340.]
. 38'ſ
IBANEKRUFTCY AND INSOLVENCY,
of public policy which now may be said to be the spirit of
bankrupt and insolvent laws."
Insolvent laws which allow the debtor to make a voluntary
assignment of his property to some public officer, or to some
one who acts under the general law rather than as a trustee
1 Persons who could avail them-
selves of the privileges of bankruptcy
under the English law when Beawes
wrote (1795) were as follows:
“Any person using the trade of
merchandise by way of bargaining in
gross or retail, exchange, rechange,
bartery, chevifance, or otherwise. 13
Eliz., ch. 7. Or, seeking his trade or
living by buying and selling, being
a natural-born subject. 21 Jac. T.,
ch. 19.
“Or, an alien, or being a denizen,
may become bankrupts. Id., § 15.
“Bankers, brokers and factors may
become bankrupts.
“An innkeeper, as such, can be no
bankrupt.
“Nor one victualing the fleet,
though he sells the overplus to mer-
chants. 5 Geo. II., ch. 30, § 39.
“A mere buying and selling brings
not a man within the statute (for
buying and selling of land will not
make a man liable to be a bankrupt),
but it is intended of such who gain
the greatest part of their living both
by buying and selling of personal
effects. Having a share in a ship,
being a farmer, or keeping a board-
ing-School, makes not a bankrupt;
buying only, or selling only, makes
not a bankrupt; but buying in Eng-
land and selling in Ireland does.
Skinner, 276, 291; 3 Mod. 327, 328; 1
Show. 96, 268; 3 Lev. 309; Mich. 1
W. and M. in B. R.” 2 Beawes' Lex
Mer., 501. -
The English law as to what made
a man a bankrupt at that time is
thus stated by Beawes:
“1st. To depart the realm.
“2d. To begin to keep house, or
otherwise. (By “keeping house’’ was
meant to stay indoors and so evade
Service of process. Cummings v.
Bailey, 6 Bing. 370.)
“3d. To absent himself. 13 Eliz.,
ch. 1.
“4th. To take sanctuary. 1 Jac. I,
ch, 15.
“5th. To suffer himself wilfully to
be arrested for any thing or debt not
grown due, or for a just considera-
tion.
“6th. To suffer himself to be out-
lawed.
“7th. To yield himself to prison;
and
“8th. To depart his dwelling-house
to the intent or purposes to defraud
or hinder a just creditor or creditors
of his or their just debts or duty.
“9th. Willingly or fraudulently to
procure himself to be arrested, or his
goods, money or chattels to be at-
tached or sequestered.
“10th. To make any fraudulent
grant or conveyance of his lands,
tenements, goods or chattels, to the
intent, or whereby his creditors may
be defeated or delayed in the recov-
ery of their just debts. 21 Jac. T.,
ch, 15.
“11th. Being arrested for debt
shall, after his arrest, lie in prison
two months upon that or any other
arrest or detention for debt. These
to be lunar months. 21 Jac. T., ch. 19.
“12th. Procuring any protection,
as that of foreign ambassadors, the
verge of the court, or any other than
that of privilege of parliament.
“13th. Being arrested for 100l. or
more of just debt or debts, and es-
caping out of prison.
“14th. If a man conceals himself in
his house but a day or an hour to delay.
388 . IBANERUPTCY AND INSOLVENCY, [$ 340.
under a composition deed, and in that manner secures its equal
distribution among his creditors, was not originally thought of
as a part of the common law of England.
The earliest English statutes proceeded upon the idea that
the debtor had committed some fraudulent or criminal act,"
and this was called an act of bankruptcy; and in consequence
thereof his creditors, or any of them, had the right to force
him into bankruptcy and to seize his property.
The dissimilarities between the rights of persons insolvent
or bankrupt under the ancient law and at the present time are
probably more numerous than their similarities.
An historical account of the various insolvent and bankrupt
acts which prevailed in England prior to the American Revo-
lution throws little light upon the subject of insolvency and
bankruptcy under the state and national laws of this govern-
ment as they now exist.”
or defraud his creditors, it makes him
a bankrupt. Palm. 325.
“15th. If a merchant trader in-
debted keeps in another man's house
or on shipboard, it is adjudged a keep-
ing in his house, but the withdraw-
ing must be on purpose to defraud
creditors; and, if a man goes some-
times at large so as he may be met
with one time or other, it will excuse
him.
“16th. Neglecting to make satis-
faction for any just debt to the
amount of one hundred pounds
within two months after service of
legal process for such debt upon any
trader having privilege of parlia-
ment.
“ 17th. Paying or giving security
to a petitioning creditor, whereby he
, shall privately have more in the
pound than the other creditors, con-
stitutes a fresh act of bankruptcy,
supersedes the commission obtained
by such favored creditor; and an-
other creditor, by petition, shall have
a new commission granted; and the
first petitioning creditor shall be
obliged to refund the sum or sums
he had partially received from the
bankrupt, and shall be excluded
from all benefits whatever under the
second commission, his whole debt
being forfeited. 5 Geo. II., ch. 30,
§ 24, -
“18th. Any member of parliament
being a merchant, and owning more
than 100l. to any one creditor, and
not paying, receiving or compound-
ing with such creditor, or not giving
bond with two sufficient sureties to
be approved by a judge of the court
in which the action is brought,
within two months after he has been
served with a summons for that pur-
pose, shall be accounted a bankrupt.
4 Geo. III., Ch. 35; 1 Sal. 110.” 2
Peawes' Lex Mer., 502, 503 (1795).
1 See History of Bankruptcy, 2
Pars. On Cont., ch. XII, where the
best account of the subject is given.
2 It was by a close adherence to
such history and the analogies and
deductions from it that those judges
who held void the acts of con-
gress allowing voluntary bankruptcy
reached their conclusions.
v. Carland.
See the
reasoning in 1 How. *269, sub, Nelson
*}
§§ 341, 342.] BANIKIRUPTOY AND INSOLVENOY, 389
SEC. 341. Policy of the English Law.—From the notes to
the preceding section it will be seen that originally the pro-
visions of the bankrupt act extended only to those who com-
mitted an act of bankruptcy. None of these acts were volun-
tary in the sense of setting the process of discharge in motion,
but at the time when that statement was prepared the act was
not necessarily fraudulent or culpable.
The effect of a discharge in bankruptcy was to extinguish
the debt. This was probably based upon the idea of the re-
ciprocal benefit which should exist between those who had the
privilege of seizing and distributing equitably all of the prop-
erty which a man possessed in favor of the person thus sub-
jected to the law. -
So it was the policy of the English law of bankruptcy to
confer an equality of privilege and benefit both upon the cred-
itor and debtor; “upon the creditors, by compelling the bank-
rupt to give up all his effects to their use, without any fraudu-
lent concealment; on the bankrupt, by exempting him from the
rigor of the common law, whereby his person might be confined
at the will of his creditor, though in reality he had no effects to
satisfy the debt. Whereas the law of bankrupts, taking into
consideration the sudden and unavoidable losses to which men
in trade are liable, has given them the liberty of their persons,
and some pecuniary allowances, upon condition that they sur-
render up their whole estate to be divided among their cred-
itors.” 1
The English parliament was not concerned with the same
questions of power which embarrass the state legislatures or
the exercise of the power by congress, and in that respect par-
liament had power to enact such bankruptcy laws as the dic-
tates of policy suggested.
SEC. 342. The Power of the State Over Insolvency and Bank-
oruptcy.—State legislation is necessarily limited in its operation
to subjects within its territorial jurisdiction, or seeking the pro-
tection of its laws, and the state by legislation cannot affect
non-resident debtors or creditors; nor can it relieve its citizens
from the necessity of obeying the jurisdiction of foreign states
1 Beawes' Lex Mer. 501.
390 BANKRUFTCY AND INSOLVENCY. [$ 342.
when they voluntarily place themselves or their goods within
such states."
The clause in the constitution which prohibits the passage by
the states of any law impairing the obligation of a contract sets
a limitation upon the power of a state insolvent or bankruptcy
law to affect injuriously contracts of residents as well as non-
residents which are entered into before the passage of the law.”
So long, however, as the United States congress has not leg-
islated upon the subject, and as to such matters not controlled
or affected by congressional legislation, the states have the
power to pass insolvent laws or bankruptcy laws, provided
they do not impair the obligation of a contract.”
Mr. Brandenburg, in his very recent work, states the well-
recognized doctrine:
“All state laws relating to the subject-matter of the federal
statute are suspended or superseded during the existence of the
federal law, even as between citizens of the same state, but are
not repealed by it, and are only suspended, so that, upon the re-
peal of the federal law, the state law is revived without the
necessity of re-enactment.”
“It has been held, however, that a federal bankrupt act (the
act of 1873) “does not ipso facto suspend state laws for the col-
lection of debts;” such, for example, as state laws relating to
the insolvent estates of persons under legal disability, such as
lunatics or spendthrifts, or an insolvent law which merely pro-
tects the person of the debtor from imprisonment.
“And so it has been held that there is no proper analogy
between insolvent laws, properly so called, and those principles
of the common law which allow and sanction the conveyance
of his property by a debtor for the equal benefit of all his cred-
itors,” and no such relation or resemblance as to warrant the
I Gilman v. Lockwood, 4 Wall. 409;
Denny v. Bennett, 128 U. S. 489. A
discharge by a state law does not
operate upon debts due to the United
States. United States v. Wilson, 8
Wheat. 253.
2 Ogden v. Saunders, 12 Wheat. 213;
Denny v. Bennett, supra.
3 Tua v. Carriere, 117 U. S. 201.
4A state insolvency law enacted
while the national act is in force is
not void, but may become operative
by repeal of the federal act. Tua v.
Carriere, 117 U. S. 201.
5 A composition deed is here re-
ferred to. See Clark v. White, 12
Pet. 178. The case of Denny v. Ben-
nett, referred to below (Sec. 344), is
similar to a composition, though con-
ducted under a statute.
§ 343.] BANKRUFTCY AND INSOLVENCY. 391
conclusion that, because the existence of a federal bankrupt
law suspends all state insolvent laws, it must therefore also
suspend those common-law principles. Accordingly, a com-
mon-law assignment for the benefit of all his creditors alike
was held to be valid, notwithstanding the existence of the fed-
eral bankrupt law, as against a creditor refusing to accept the
benefit thereof, and who, in an action for the recovery of his
debts, seeks to garnish the assignee upon the ground that the
assignment is void. Whether such assignment would be held
to be an act of bankruptcy, if the question were raised in a
direct proceeding for that purpose, is not passed upon.
“But so far as such state laws attempt to discharge the con-
tract as against citizens of other states they are unconstitu-
tional; and so a discharge under a foreign bankrupt law can-
not be pleaded in bar to an action on a contract made in this
country." A state law discharging the person or the property
of the debtor, and thereby terminating the legal obligation of
the debt, cannot constitutionally be made to apply to debts
contracted prior to the passage of the law; but the law may
be made to apply to such future contracts as can be considered
as having been made in reference to the law. Statutes of this
class must be construed to be parts of all contracts made when
they are in existence, and therefore cannot be held to impair
their obligation.”
SEC. 343. States May Change or Regulate the Remedy.—The
state may change the remedy, or change the statute of limita-
tions and the mode of proof, though it may not substantially
1 “State legislatures may pass in-
solvent laws, provided there be no
act of congress establishing a uni-
form system of bankruptcy conflict-
ing with their provisions, and pro-
vided that the law itself be so framed
that it does not impair the obliga-
tion of contracts. Certificates of dis-
charge, however, granted under such
a law cannot be pleaded in bar of an
action brought by a citizen of an-
other state in the courts of the United
$tates, or of any other state than that
where the discharge was obtained, un-
less it appear that the plaintiff proved
his debt against the defendant’s es-
tate in insolvency, or in some man-
ner became a party to the proceed-
ings. Insolvent laws of one state
cannot discharge the contracts of
citizens of other states, because such
laws have no extra-territorial opera-
tion, and consequently the tribunal
sitting under them, unless in cases
where a citizen of such other state
voluntarily becomes a party to the
proceeding, has no jurisdiction of the
cause.” Gilman v. Lockwood, 4 Wall.
409. i
* Brandenburg on Bankruptcy, 7, 8.
392
Is 843.
BANERUPTCY AND IN SOLVENCY,
impair the obligation of a contract, or deny entirely all rem-
edy;' but the state may not, under the guise of affecting the
remedy, substantially affect the right.”
It follows that the state cannot pass an act which entirely
discharges a party from liability on a contract entered into be-
fore the passage of the act;” but the state may refuse to allow
the further enforcement of imprisonment for debt," for a law
abolishing imprisonment for debt does not impair the obliga-
tion of a contract.
1 Cooley's Const. Lim. 445. Also
Board of Education v. Blodgett, 155
Ill. 441. “In Bronson v. Kinzie, 1
How. 317, Chief Justice Taney quotes
the language used in Green v. Bid-
dle, 8 Wheat. 75: ‘It is no answer
that the acts of Kentucky now in
question are regulations of the rem-
edy and not of the right to the lands.
If these, acts so change the nature
and extent of existing remedies as
materially to impair the rights and
interests of the owner, they are just
as much a violation of the compact
as if they directly overturned his
rights and interests.” (The compact
referred to was the Ordinance of
1787.) On page 817 he says: “And
no one, we presume, would say that
there is any substantial difference
between a retrospective law declar-
ing a particular contract or class of
contracts to be abrogated and void,
and one which took away all remedy
to enforce them, Or incumbered it
with conditions that rendered it use.
less or impracticable to pursue it.
Plackstone, in his Commentaries on
the Laws of England (vol. 1, p. 55),
after having treated of the declara-
tory and directory parts of the law,
defines the remedial in the following
words: “The remedial part of the
law is so necessary a consequence of
the former two that laws must be
very vague and imperfect without
it. For in vain would rights be de-
clared, in vain directed to be ob-
Served, if there were no method of
recovering and asserting those rights
when wrongfully withheld or in-
vaded. This is what we mean prop-
erly when we speak of the protec-
tion of the law.”” He then instances
where the law declares that the field
of inheritance which belongs to the
father shall go to the son, and forbids
any other to enter upon it. If a
third will afterward presume to take
possession, the remedial part of the
law will then interpose its office and
will make him restore the possession.
We have quoted the entire para-
graph, because it shows in a few
plain words, and illustrates by a fa-
miliar example, the connection of
the remedy with the right. It is a
part of the municipal law which pro-
tects the right and the obligation by
which it enforces and maintains it.
It is this protection which the clause
in the constitution now in question
mainly intended to secure. And it
would be unjust to the memory of
the distinguished men who framed
it to suppose it was designed to pro-
tect a mere barren and abstract
right, without any practical opera-
tion upon the business of life.”
2 Bronson v. Kinzie, 1 How. 317;
Denny v. Bennett, 128 U. S. 489.
3 Ogden v. Saunders, 12 Wheat. 213;
Denny v. Bennett, supra.
4 Sturges v. Crowninshield, 4
Wheat. 122; Mason v. Haile, 12 id.
370.
§ 343.]
393
BANKRUPTCY AND INSOLVENCY,
The rule does not, however, prevent the enactment of rea-
sonable exemption laws." It does inhibit the enactment of a
statute, applicable to debts existing when the act was passed,
which prohibits the sale of real estate on execution, unless there
1 A Minnesota statute allowed a
debtor whose property was seized on
attachment or execution to make an
assignment of all property not ex-
empt for the benefit of all creditors
who would release their debts on re-
ceipt of their dividends, and also pro-
vided for payment to the assignor of
any surplus. It was held that the
act did not impair the obligation of
a contract. That the discharge pro-
vided for did not release the debtor
from claims held by non-residents.
The general principles of the law are
clearly stated by Mr. Justice Miller
in Denny v. Bennett, 128 U. S. 494:
“With regard to the first of these, it
may be conceded that, so far as an
attempt might be made to apply this
statute to contracts in existence be-
fore it was enacted, it would be liable
to the objection raised, and therefore
in such a case of no effect. But the
doctrine has been long settled that
statutes limiting the right of the
creditor to enforce his claims against
the property of the debtor, which are
in existence at the time the contracts
are made, are not void, but are within
the legislative power of the states
where the property and the debtor
are to be found. The courts of the
country abound in decisions of this
class, exempting property from exe-
cution and attachment, no limit hav-
ing been fixed to the amount—pro-
viding for a valuation at which alone,
or generally two-thirds of which, the
property can be brought to a forced
sale to discharge the debt — grant-
ing stays of execution after judg-
ment, and in numerous ways holding
that, as to contracts made after the
passage of such laws, the legislative
enactments, regulating the rights of
the creditors in the enforcement of
their claims, are valid. These stat-
utes exempting the homestead of the
debtor, perhaps with many acres of
land adjoining it, the books and li-
brary of the professional man, the
horse and buggy and surgical imple-
ments of the physician, or the house-
hold furniture, horses, cows, and
other articles belonging to the debtor,
have all been held to be valid, with-
Out reference to the residence Of the
creditor, as applied to contracts made
after their passage.
“The principle is well stated in the
case of Edwards v. Kearzey, 96 U. S.
595, 603, in the following language:
‘The inhibition of the constitution is.
wholly prospective. The states may
legislate as to contracts thereafter
made as they may see fit. It is only
those in existence when the hostile.
law is passed that are protected from
its effect ’
“See also Railroad Co. v. Rock, 4
Wall. 177; University v. People, 99.
TJ. S. 309; Knox v. Exchange Bank,
12 Wall. 379.
“The doctrine was very early an-
Inounced in the case of Wales v. Stet-
son, 2 Mass. 143; and in the separate.
opinion of Mr. Justice Story in Trust-
ees of Dartmouth College v. Wood-
ward, 4 Wheat. 518, 666, decided in
1819, it was suggested that in a grant;
of a charter to a Corporation a res-
ervation of the right to repeal it
would be valid. This has been acted
upon, and such action has been held
in many cases to be valid.
“The later case of Greenwood v.
Freight Co., 105 U. S. 13, contains a
review of this whole subject, so far
as contracts are concerned.” Denny
v. Bennett, 128 U. S. 489–494. -
394 BANKRUPTCY AND INSOLVENOY. [šš 344–346.
shall be bid for the same a certain designated portion of its
Walue."
SEC. 344. Power of Congress.-There being no inhibition in
the federal constitution against the passing of laws by congress
which have the effect of impairing the obligation of a contract,
and the whole subject of bankruptcy being delegated to con-
gress without reserve, it follows that congress has the right to
pass a uniform bankruptcy act, even though it may impair the
obligation of a contract.
The section of the constitution in reference to impairing the
obligation of a contract relates only to laws of a state having
that effect.” -
SEC. 345. Congress May Allow Voluntary Bankruptcy.—The
English bankruptcy laws in force when the constitution was
adopted only contemplated what we now call involuntary bank-
ruptcy, or throwing of the trader into bankruptcy by a cred-
itor because of some act of bankruptcy committed by the debtor;
and it became a question whether using the word bankruptcy
in the constitution, without mentioning insolvency, did not im-
pliedly limit the power of congress to the passage of a bank-
ruptcy act similar in its principles to the English law upon that
subject,” and the first bankruptcy law was by some courts ad-
judged void."
It is now settled, however, that congress is not limited to the
enactment of laws similar in principle to those that existed in
IEngland prior to the adoption of the constitution, and it is per-
fectly lawful for congress to allow voluntary bankruptcy; that
is, to allow the debtor to make his own application to be ad-
judged a bankrupt and to be discharged from his debts.”
SEC. 346. Who May Become Bankrupts.-
(a) Voluntary Bankrupt.— “Any person who owes debts,
except a corporation, shall be entitled to the benefits of this
act as a voluntary bankrupt.”"
1 Bronson v. Kinzie, 1 How. 317; ported sub. Nelson v. Carland, 1
McCracken v. Hayward, 2 How. 608. How. 265, an interesting history of
*New Orleans Water-works v. Loui- the subject is given. See also Sturges
‘siana Sugar Co., 125 U. S. 18. v. Crowninshield, 4. Wheat. 122.
82 Parsons on Cont., Part 2, ch. 5 Ibid.
IX (three-volume edition, ch. XII). 6 United States Bankruptcy Act,
*In Re Klein, a district court case 1898, ch. 3, Sec. 4.
noticed by Judge Catron, and re-
§§ 347, 848.] BANKRUPToy AND INSOLVENCY. 395
(b) Involuntary Bankrupt.—“Any natural person, except a
wage-earner or a person engaged chiefly in farming or the
tillage of the soil, any unincorporated company, and any cor-
poration engaged principally in manufacturing, trading, print-
ing, publishing or mercantile pursuits, owing debts to the
amount of $1,000 or over, may be adjudged an involuntary
bankrupt upon default or an impartial trial, and shall be sub-
ject to the provisions and entitled to the benefits of this act.
Private bankers, but not national banks or banks incorporated
under state or territorial laws,” are not within the privilege."
SEC. 347. Acts of Bankruptcy.—The present law provides
what acts shall be deemed acts of bankruptcy in order to allow
the filing of a petition of involuntary bankruptcy against the
debtor.
The provision is as follows: “Acts of bankruptcy by a per-
Son shall consist of his having (1) conveyed, transferred, con-
cealed or removed, or permitted to be concealed or removed,
any part of his property with intent to hinder, delay or de-
fraud his creditors, or any of them; or (2) transferred, while
insolvent, any portion of his property to one or more of his
creditors with intent to prefer such creditors over his other
creditors; or (3) suffered or permitted, while insolvent, any
creditor to obtain a preference through legal proceedings, and
not having at least five days before a sale or final disposition
of any property affected by such preference vacated or dis-
charged such preference; or (4) made a general assignment
for the benefit of his creditors; or (5) admitted in writing his
inability to pay his debts and his willingness to be adjudged a
bankrupt on that ground.” -
SEC. 348. When the Act of 1898 Became Operative.—The act
provided that it should go into full force and effect upon its
passage, but that no petition for voluntary bankruptcy should be
filed within one month, and no petition for involuntary bank-
ruptcy within four months from its passage.”
It has been held under this act that it was effective from the
date of its passage to supersede the insolvency laws of the
Several states.”
1 Id., clause b. 8 United States Bankruptcy Act,
* United States Bankruptcy Act, ch. 7. -
1898, ch. 3, sec. 3. 4 In re Rouse, Hazard & Co., C. C. A.,
396 EANKRUPTCY AND INSOLVENCY, [$349.
SEC, 349. Effect Upon State Proceedings Under State Insolv-
ency Laws-The act of congress provided that proceedings
commenced under state insolvency laws before the passage of
the act should not be affected thereby, notwithstanding the
provision that petitions should not be received in one instance
Within One month and in the other within four months after
the passage of the act. Nevertheless all proceedings under the
state insolvency laws were superseded by the passage of the
United States bankruptcy act.
The circuit court of appeals, in In re Rouse, Hazard dà Co.,
held that: -
“The power of congress to enact a general bankruptcy stat-
ute is secured by constitutional provision. In the absence of
such congressional enactment the states are free to provide for
insolvency relief of limited extent; but when congress exer-
cises its authority by a general enactment, all state action is
suspended from such time, and subject only to such limitations
as may be prescribed in the act." As remarked in Platt v.
Archer,” this authority is ‘paramount and exclusive, and so is the
jurisdiction of the district court thereunder.” The doctrine
thus stated is well established, and is unquestioned upon this
motion, except that it is contended (1) that the act of July 1,
1898, was not intended to go into effect in cases of involuntary
bankruptcy until November 1; and (2) even if so intended,
that no remedy was provided for the intervening four months,
leaving the state enactments unimpaired, so that in actions
commenced meantime for their enforcement jurisdiction is re-
tained of the subject-matter, without interference by proceed-
ings under the bankruptcy act. 4.
“‘These various provisions affecting the rights and conduct
of debtors and creditors are different from those previously ex-
isting in most of the states, and perhaps different from those
found in the laws of any state, and they supersede all conflict-
ing provisions. -
“‘The only limitation upon the full and complete operation
Jan. 3, 1899; 31 Chicago Legal News, tine Co., 89 Fed. Rep. 691; In re Bruss-
165. Citing Parmenter v. Hamilton, Ritter Co., 90 Fed. Rep. 651.
51 N. E. Rep. 529. See also Blake, 1 Tua v. Carriere, 117 U. S. 201, 209,
Mofitt and Towne v. Francis Valen- 210.
- - 29 Blatchf. 559; Fed. Cas. No. 11,213.
§ 350.] BANIKEUPTCY AND IN SOLVENCY, : 397
of the act upon its passage is that the right to begin proceed-
ings is postponed one month in the case of voluntary petitions
and four months in the case of involuntary petitions. When-
ever the proceedings are commenced, the conduct of the par-
ties after the passage of the act is to be tested by its require-
ments. The only saving clause affecting the jurisdiction of
state courts provides for cases commenced in those courts be-
fore the passage of the act.
“‘The plain implication is that proceedings commenced in
the state courts after the passage of the act are unauthorized.
This is in accordance with the earlier language giving the stat-
ute full force and effect from the time of its passage, except
that the filing of petitions is to be postponed for a short time.
“‘We are of opinion that the language was chosen to make
clear the purpose of congress that the new system of bank-
ruptcy should supersede all state laws in regard to insolvency
from the date of the passage of the statute.’”
SEC. 350. Effect of Bankruptcy Proceedings on Suits in a
State Court.—The act provides that “a suit which is founded
upon a claim from which a discharge would be a release, and
which is pending against a person at the time of the filing of a
petition against him, shall be stayed until after an adjudication
or the dismissal of the petition. If such person is adjudged
a bankrupt, such action may be further stayed until twelve
months after the date of such adjudication, or if within that
time such person applies for a discharge, then until the ques-
tion of such discharge is determined.”*
Under former bankruptcy acts it was held that such a suit
must be stayed, even though an attachment had been sued out in
the proceeding more than four months before the commence-
ment of the proceedings in bankruptcy, and has been dissolved
by giving bond with sureties to pay the amount of the judgment
which might be recovered, and the decision of the Illinois su-
preme court refusing the stay was reversed by the Supreme
court of the United States;” and in a later case it was held that
a discharge in bankruptcy might be set up in a state court to
stay the isssue of execution on a judgment recovered against
1 In re Bruss-Ritter Co., Chicago 2 United States Bankruptcy Act,
Legal News, Dec. 17, 1898, p. 139; 90 1898, Ch. 3, Sec. 11.
Fed. Rep. 651. 3 Hill v. Harding, 107 U. S. 631.
398 BANKRUPTCY AND INSOLVENCY. [$ 350.
the bankrupt after the commencement of the proceedings in
bankruptcy and before the discharge, although the defendant
did not before the judgment ask for a stay of proceedings,
which he might have obtained under the bankruptcy proceed-
ing pending before judgment.
It was there said that the defendant was not obliged to make
application for the stay, and did not waive his right to the stay
by virtue of his discharge by neglect to ask for a stay at the
earliest possible moment pending the question of his discharge."
it follows that the details of these
subjects are more properly treated
with the subject of property and pro-
cedure. We are here only concerned
with the power of congress with ref-
erence to the passage of a uniform
Boynton v. Ball, 121 U. S. 457.
Procedure under the Bankruptcy
Law.—An examination of the act,
and a consideration of the subject
from a legal standpoint, indicate that
the objects effected by the bank-
ruptcy act are the transfer of owner-
ship and the jurisdiction and proced-
ure for the collection of debts; and
bankruptcy law, and the general prin-
ciples governing the exercise of that
power.
PLAN OF TREATMENT OF OTHER SUBJECTS ENUMERATED IN THE CON-
STITUTION.—The method of treatment, as heretofore stated, is that subjects
shall be arranged in accordance with the object to be affected by the law,
without regard to whether the law has its sanction in a constitution, a
treaty, statute, a custom, or the common law as evidenced by the decisions
of the courts. This principle which dominates the method of this book per-
mits and requires that the treatment of several subjects here mentioned in
the constitution shall be postponed to later portions of the book. Fortu-
qvately this permits an order of subjects conforming with the traditions of
the profession, e.g.: *
Naturalization, art. 1, sec. 8, cl. 4. With private persons.
Counterfeiting, art. 1, sec. 8, cl. 6. Criminal law.
Patents and trade-marks and copyright, cl. 8. Things.
erty.)
Judicial Department, cl. 9. The law of action or procedure. (Courts and
their jurisdiction.)
Conduct of foreign war, cl. 10. International law.
The Bill of Rights, Habeas Corpus, sec. 9, cl. 2. Bill of Attainder, Ex
Post Facto, sec. 9, cl. 3,-with the liberties of individuals, including the
amendments affecting that subject.
(Personal prop-
CHAPTER XIX.
WAR AND MILITARY POWER.
SEC. 351. Constitutional Provisions Granting Power.—The
provisions of article 1 of the constitution, together with the
second and third amendments to the constitution, are the
Sources and limitations of the power of congress over the sub-
ject."
The tenth clause of section 8 is as follows: “To declare war,
grant letters of marque and reprisal, and make rules concern-
ing captures for a longer term than three years.”
Eleventh clause. “To raise and support armies; but no ap-
propriation of money to that use shall be for a longer term
than two years.”
Twelfth clause. “To provide and maintain a navy.”
Thirteenth clause. “To make rules for the government and
regulation of the land and naval forces.”
JFourteenth clause. “To provide for calling forth the militia
to execute the laws of the Union, suppress insurrections, and
repel invasions.”
Fifteenth clause. “To provide for organizing, arming and
disciplining the militia, and for governing such part of them
as may be employed in the service of the United States, reserv-
ing to the states respectively the appointment of the Officers,
and the authority of training the militia according to the dis-
cipline prescribed by congress.”
Second amendment. “A well-regulated militia being neces- .
sary to the security of a free state, the rights of the people to
keep and bear arms shall not be infringed.”
Third amendment. “No soldier shall, in time of peace, be
quartered in any house without the consent of the owner; nor
in time of war, but in a manner to be prescribed by law.”
1 The authority of the executive 2 See Baker’s Annotated Constitu-
must be considered in connection tion for decisions under these clauses:
with the power of congress.
400 WAR AND Military Power. [$ 352.
Second clause of section 70. “No state shall, without the
consent of congress, lay any duty of tonnage, keep troops or
ships of war in time of peace, enter into any agreement or
compact with another state or with a foreign power, or engage
in war unless actually invaded or in such imminent danger as
will not admit of delay.”
SEC. 352. The Army, Navy and Militia.-The student of
American institutions who has followed the work thus far can-
not fail to have been impressed with the unifying and centraliz-
ing force of the constitution, and with the immense power com-
bined in the several departments of the national government.
The power over foreign and interstate commerce lays the
traffic of the people under the control of the national govern-
ment.
The power over the coinage of money as interpreted by the
courts adds to this power.
The construction of the constitution which subordinates the
police power of the state to the powers of the government
under the commerce clause completes the subordination of all
individual and state interests, except a remnant of personal
liberty, to the authority of the general government.
These matters have developed from time to time, sometimes
in the courts, sometimes in conflicts actually bringing the citi-
Zen in collision with the officers and agencies of the general
government, sometimes in fierce conflicts between the state and
national executive, several times in armed collision, and once
in a great civil War; but in the end the result has been declared
by the adjudication of the courts.
Perhaps the most startling revelation to the rank and file of
the citizens of the United States would be a realizing sense of
the extent of the military power of the national government in
times of peace as well as in times of war."
1 Our presidents have spoken plainly
On the subject: “The organization of
the militia is yet more indispensable
to the liberties of the country. It is
only by an effective militia that we
can, at Once, enjoy the repose of
peace, and bid defiance to foreign
aggression; it is by the militia that
we are constituted an armed nation,
standing in perpetual panoply of de-
fense, in the presence of all the other
nations of the earth.” John Q. Adams’
Message, March 4, 1825. . . . “The
bulwark of our defense is the national
militia, which, in the present state of
Our intelligence and population, must
render us invincible. . So long
as it (the constitution) is worth de-
fending, a patriotic militia will cover
it with an impenetrable Cegis. Par-
§ 352.] WAR ANI) MILITARY POWER. 401
The regular military force of the United States is not bound
in any sense by the standing army' which the government
has under its control, but it may extend to the enrollment of
every able-bodied citizen in the militia Organizations which
congress may require to be maintained in every hamlet and vil-
lage throughout the United States, drilled, armed and equipped
and ready for the call of the president, whose command is
as absolute and imperative as the call of the minute-men
which the patriots had agreed to obey. It may take the
teacher from his school, the professional man from his profes-
sion, the farmer from his plow, the mechanic from his machine,
with the same imperious requisition that any czar or king of
Europe might issue. That such an establishment has been in
peaceful existence during all the time since the establishment
of the constitution of the United States, and yet has rested so
lightly upon the people, been maintained with so little friction,
and rendered so efficient service in the protection of the peo-
ple and the preservation of the constitution, speaks volumes for
the wisdom of the framers of the constitution, the sagacity, pru-
dence and moderation of those in whose hands the reins of
government have been intrusted, and the efficacy of the system
of checks and balances against absolute power.” The great
distinction between the power of officers under the constitu-
tion and similar powers invested in a personal monarch consists
that in one the authority is delegated or intrusted, in the other
exercised of right. Herein lies the reason for the different
spirit with which it is exercised.
is to be found in the constitution
itself. In a free government the
tial injures and occasional mortifi-
cations we may be subjected to, but
a million of armed freemen, possessed
of the means of war, can never be con-
Quered by a foreign foe.” Jackson's
Inaugural Message, March 4, 1829.
1 The militia force, according to the
message of President Monroe, Decem-
ber 2, 1817, was eight hundred thou-
sand men, most Of them armed.
2 Chief Justice Story says: “It is
no answer that such a power may be
abused, for there is no power which
is not susceptible of abuse. The rem-
edy for this, as well as for all other
Official misconduct, if it should occur,
danger must be remote, since, in ad-
dition to the high qualities which
the executive must be presumed to
possess, of public virtue and honest
devotion to the public interest, the
frequency of elections, and the watch-
fulness of the representatives of the
nation, carry with them all the
checks which can be useful to guard
against usurpation or wanton tyr-
anny.” Martin v. Mott, 12 Wheat.
18. See also opinion of Jay, C. J., in
Chisholm v. Georgia, 2 Dall, 416.
26
402 WAR AND MILITAIRY POWER. [$$ 353, 354.
SEC. 353. The Separation of Power — Checks and Balances.
There have been those who argue that, because of the vast dis-
cretion which is vested in the executive and the great power
plainly lodged in congress, the power of the president is ab-
solute, and is as imperious as that of the czar of Russia under
his constitutional powers; but it is submitted that the constitu-
tion is not open to such criticism, nor have the results which
have attended instances of the arbitrary exercise of power jus-
tified the conclusion.
The military power, the control of the army and navy,
the power of plunging the nation in war, or of restoring peace,
is not committed solely to the hands of the president or of con-
gress, and the acts of the president in every department are
subject to the control of congress, and may even be arrested by
that body. He may exercise his powers arbitrarily, no doubt;
but, being answerable for them, it cannot in any appropriate
legal sense be said that his power is absolute.
Under his orders, either through malice or misinformation,
the rights of the citizen may be disregarded and the citizen
wronged, but the arresting hand of the law is still open to pre-
serve and redress that wrong; and the instances under which
the power of the president has been checked and rebuked and
punishment has been inflicted upon those who undertook to
justify under his commands are sufficient to vindicate the dig-
nity of the law and warn others against like transgression.
The ever-menacing power of congress is a constant admonition
and check upon any semblance of the arbitrary exercise of
authority by the president himself."
SEC. 354. Congress Has Power to Raise and Support Armies,
with the single restriction that no appropriation of money
should be made for a longer term than two years; indicating
thereby that the policy was at that time against the institution
of a settled and fixed fund for the support of a large standing
army.
Congress is also given the power to provide and maintain a
navy, which power is not coupled with a limitation with refer-
erence to the appropriation of money, as in the grant of the
power to support the army.
! See Johnson v. Jones, 44 Ill. 142; Ex parte Milligan, 4 Wall, 2–143.
§§ 355, 356.] waR AND MILITARY PoweR. 403
Further powers are granted to congress in reference to the
organization of a standing equipment and organization of men
ready to be called into the service of the United States as fol-
lows:
“To provide for organizing, arming and disciplining the mi-
litia, and for governing such part of them as may be employed
in the service of the United States; reserving to the states re-
spectively the appointment of the officers and the authority of
training the militia according to the discipline prescribed by
congress.”
“To provide for calling forth the militia to execute the laws
of the Union, suppress insurrections and repel invasions.”
SEC. 355. The Army of the United States.—The insignifi-
cant number of troops which have been heretofore enrolled in
the regular army of the United States has been the occasion of
much comment at home and abroad, and it has been a matter
of Wonder to many how a great nation, occupying so vast a
territory, with so large a sea-coast, could afford to risk the
ever-present possibility of foreign war, with a standing army
of a less number of men than were on several occasions slain
on the battlefields of the late war during a single battle;' but
unlike other governments, and particularly European govern-
ments, the military strength and equipment, ready and at hand
awaiting the call to arms, is by no means measured by the reg-
ular army of the United States.
The Regular Army.—The regular army of the United States
is that body of men permanently enrolled in the military serv-
ice of the United States under arms and under pay of the govern-
ment and actually engaged in the service, either in garrisoning
of ports or in any other department wherein the government
may need or use the military arm. *
SEC. 356. Standing Military Forces.—Congress is expressl
given power to provide for organizing, arming and disciplining
the militia, and for governing such parts of them as may be
employed in the service of the United States, reserving to the
states respectively the appointment of the officers and the au-
thority of training the militia according to the discipline pre-
scribed by congress. - 4.
*The regular army prior to the late Spanish war was approximately
twenty-five thousand men. -
404 WAR AND MILITARY POWER.
[$356.
“To provide for calling forth the militia to execute the laws
of the Union, suppress insurrections and repel invasions.”
The foreigner traveling through the United States sees here
and there a garrisoned fortress, perhaps, Occasionally a company
of federal troops traveling from post to post, and smiles at the
apparently inefficient preparations to execute the laws of the
Union, to suppress insurrection, to repel invasion, and, if we
add the words of the constitution, “to prosecute a foreign war.”
Perhaps he may occasionally see a militia company out for
drill, or visiting the state encampments, which in modern times
have been established, and the periodical visit to which and sub-
jection to military discipline during the time of the visit has
become a prescribed part of the Organization of the militia.
There is here little to suggest that this is a part of the standing
army of the United States and much which leads to the view
that these are merely state organizations, established to execute
the whim of the state executive and gratify the desire of the
citizens of the states for military display. Indeed, there is a
suggestion that the state militia may be an instrument in the
preservation of the autonomy of the states.
Unless restrained by congress, the state may have a militia
organization independent of that provided for by the laws of
the Union, but this must always be subject to the duty of every
citizen to become a part of the militia."
I Every Citizen, May be Impressed
into the Service.—“It is undoubtedly
true that all citizens capable of bear-
ing arms constitute the reserved mil-
itary force or reserve militia of the
TJnited States as well as of the states,
and, in view of this prerogative of
the general government, as well as
of its general powers, the states can-
not, even laying the constitutional
provision in question out of view,
prohibit the people from keeping and
bearing arms so as to deprive the
TJnited States of their rightful re-
source for maintaining the public
security and disable the people from
performing their duty to the general
government.”
A State May, However, Prohibit
Military Organizations Not Acting
Under Federal Authority.— “The
right voluntarily to associate to-
gether as a military company or or-
ganization, or to drill together as a
military company or organization, or
to drill or parade with arms, with-
Out and independent of an act of con-
gress or law of the state authorizing
the same, is not an attribute of na-
tional citizenship. Military organi-
zation and military drill and parade
under arms are subjects especially
under the control of the government
of every country. They cannot be
claimed as a right independent of
law. Under our political system they
are subject to the regulation and Con-
trol of the state and federal govern-
§ 357.] WAR AND MILITARY POWER. 405.
SEC. 357. State and Federal Authority Over the Militia.--
It is to be observed that congress has power to provide by law
for the Organization and disciplining the militia, and for govern-
ing them when actually employed in the service of the United
States.
To the states is reserved the appointment of the officers and
the authority of training the militia. If the constitution had
stopped there, it might have been contended that the militia
was under the authority of the states; but the clause is added
that such training shall be according to the discipline pre-
scribed by congress, which is the same as saying that the
whole militia of the United States shall be trained in such a
manner as to co-operate as one trained army at the behest of
congress." *
These articles of the constitution not being self-executing re-
quire the passage of laws to give them force and efficacy, and
in accordance there with congress has from time to time passed
laws for the governing of the regular army, the navy, and the
militia to be organized in the several states.
As might have been anticipated from the conflicting views
which were held with reference to the relative powers of state
sovereignty and the national union, conflicts of opinion early
arose as to the rights of the United States in reference to the
control and management of the state militia.
The government of Connecticut, for example, held that the
militia could not be called out except in a case declared and
founded on the existence of one of the specified exigencies, and
that the integrity of the company must be preserved and its
organization maintained under the officers appointed by the
state.”
So says Chancellor Kent: Some difficulties arose between
the general government and Massachusetts, and both Connecti-
cut and Massachusetts refused to furnish detachments of militia
for the maritime frontier.
ments, acting in due regard to their munities of citizens of the United
respective prerogatives and powers. States independent of Some specific
The constitution and laws of the legislation on the subject.” Presser
|United States will be searched in v. Illinois, 116 U. S. 252–267.
vain for any support to the view that 1 Id.
these rights are privileges and im- 21 Kent's Com. 262.
406 WAR AND MILITARY POWER. [$ 357.
The governor of Connecticut claimed to have the right to
determine when the exigency existed, and it was argued that,
as the constitution did not in express terms authorize the presi-
dent or congress to decide when the militia might be called to
the service of the United States, the power belonged to the
state under the reserved power, and that a different construc-
tion would place the militia in effect at the will of congress
and produce a military consolidation of these states, and that
construction in fact placed the militia under the president's
control."
The question then squarely presented was the same which
was made the test of so many other questions, namely: Are we
one people in war as well as in peace? Does the reciprocal
bond of protection and obedience extend from the general gov-
ernment to each individual so far as to require of him the mili-
tary service usually exacted by a nation from its citizens?”
The questions which thus early arose in many quarters and
in various shapes have reached final solution, not by the dec-
laration of the president, not by the passage of acts by the leg-
islature, but by the declaration of the appropriate tribunal es-
tablished by law to assure the citizens that no arbitrary power
should be exercised by any branch of the government, namely,
the supreme court of the United States.
The general government had occasion, at the time of the
Bennsylvania whiskey insurrection, to call upon the militia as
well as the armed forces of the nation; but it was not until the
1 1 Kent’s Com. 264.
2 “Among the incidents to the
measures of the war, I am Con-
strained to advert to the refusal of
the governors of Massachusetts and
Connecticut to furnish the required
detachments of militia towards the
defense of the maritime frontier.
The refusal was founded on a novel
and unfortunate exposition of the
provisions of the constitution relat-
ing to the militia. The correspond-
ences which will be before you con-
tain the requisite information on the
subject. It is obvious that, if the
authority of the United States to call
into service and command the militia
for the public defense can be thus
frustrated, even in a state of declared
war, and of course under apprehen-
sions of invasion preceding war, they
are not one nation for the purpose
most of all requiring it; and that the
public safety may have no other
resource than in those large and
permanent military establishments
which are forbidden by the prin-
ciples of our free government, and
against the necessity of which the
militia were meant to be a constitu-
tional bulwark.” Message of Presi-
dent Madison, 1812.
§ 358.] "WAIR AND MILITARY POWER. 407
case of Martin v. Mott, in the year 1827, that the relative rights
of the states and the United States were finally put at rest, it
being held in that case that every militiaman, whether he was
actually employed in the service of the United States or not,
was subject to the call of the president, and for a refusal of
obedience might be subject to trial by court-martial, and that
the judgment of the president as to whether the exigency for
the call existed was conclusive upon all persons.
It is within the power of congress to determine who shall
compose the militia, and the state legislature may not provide
other qualifications.”
(SEC. 358. The Paramount Allegiance is to the United States.
A question of equal delicacy arose in South Carolina in 1832.
The legislature claimed the right to nullify the acts of congress,
not merely through legislative enactment, but by calling a state
convention and having the people of the state repudiate the
action of congress by an ordinance or declaration of sovereign
will and intended to secure immunity from the United States.
The legislature passed an act to provide for the military organ-
ization of the state, and prescribed in addition to the oaths
already required by law that every officer of the militia shall,
before entering upon the duties of his office, take and subscribe
the oath that “I will be faithful and true allegiance bear to
the state of South Carolina,” without the addition of any refer-
ence to the constitution and laws of the United States.
One McCready, who was elected a lieutenant in the infantry,
refused to take the oath, but offered to take that prescribed in
the state constitution, which embodied allegiance to the gen-
eral government.
The officer who was delegated by the government to issue
commissions in such cases refused the commission and manda-
7m us was brought.
After the most elaborate arguments which have been made
in any court in the United States concerning the nature of the
allegiance or governmental bond which exists between the in-
dividual and his state and the United States, the Supreme court
of South Carolina held that the paramount allegiance was to
1 12 Wheat. 18. 416. See Presser v. Illinois, 116 U. S.
* Opinions of the Justices, 14 Gray, 252.
4.08 WAR AND MILITARY POWER. [šš 359, 360.
the United States, and that the oath must not exclude alle-
giance to the general government."
SEC. 359. Military Law of the Militia Service.— Being en-
rolled in the militia service does not subject the citizen to
military discipline and law, except during the time he is actu-
ally engaged in the service, or for disobedience of such rightful
calls and commands as may require him to engage therein, or
to exercise his duties; * but such militiamen are subject to court-
martial under the jurisdiction of the state authority or under the
United States military code for a refusal to obey the call of the
president, and they remain under such jurisdiction until they
have actually placed themselves within the jurisdiction of the
United States under such call.”
There is no doubt at the present time of the Supremacy of the
general government in all matters pertaining to war and the
military and naval forces, and the right of the nation to compel
every able-bodied citizen to render military service if required,
and to prepare himself therefor by the proper exercises and
drilling in times of peace.”
SEC. 360. Jurisdiction of Courts-martial Eacclusive.—State
courts have no jurisdiction to annul by habeas corpus or by
any other means the judgments and decrees of the courts-
martial. They may, however, inquire into the jurisdiction in
such cases, and if the courts-martial are proceeding without
jurisdiction they may be restrained.”
1 State v. Hunt, 2 Hill (S. C.), 1;
State v. M'Meekin, 2 Hill (S. C.), 1.
The arguments of these cases by Mr.
Grimke and Mr. Pettigru for the re-
lator, and the attorney-general for
the state, and Mr. Findley for the de-
fendant, who were assisted by Mr.
Blanding and Mr. McWilley, are per-
haps the most exhaustive examina-
tion of the nature of allegiance and
sovereignty, and the idea of states’
rights as they were understood at
that time, to be found in the books.
Certainly there is nothing in any of
the discussions of Mr. Hayne, Mr.
Calhoun or Mr. Webster which is not
to be found in these arguments, and
their value is enhanced by the his-
torical references and the abundant
citation. The result reached by the
decision was favorable to the na-
tional cause, and reflects great credit,
upon the learning and wisdom and
the stern integrity of the judge. The
whole case is worthy of the study of
any one desiring to understand the
foundation principles of our govern-
ment.
2 Martin v. Mott, 12 Wheat. 18; Mills.
V. Martin, 19 John. 7.
3 Houston v. Moore, 5 Wheat. 1;
McCall's Case, 5 Phil. 259; Gould &
Tucker's Notes, title 16, p. 433 et seq.
4 Cooley on Torts, 344; Griner's.
Case, 16 Wis. 423; Presser v. Illinois,
116 U. S. 252.
5 Johnson v. Sayre, 158 U. S. 109;
Dynes v. Hoover, 20 How. 65. See
§ 361.] WAR AND MILITARY POWER. 4.09,
Neither can the superior courts by writ of prohibition con-
trol the exercise of power by regularly established courts-mar-
tial."
The writ of prohibition is not a proper writ in such cases for
the reason that the courts-martial are not inferior to, and in
fact are not within the same department with, the judicial es-
tablishment of the state.”
SEC. 361. Military Law.—The individual, when he becomes
properly enrolled as a member of the military or naval estab-
lishment of the United States, takes on a new capacity or per-
Sonae, and subjects himself to a new jurisdiction, a new body of
rules and regulations, and new methods of procedure and pun-
ishment.”
The members of the military and naval organization of the
|United States are at all times subject to what is known as mili-
tary law and discipline,” consisting of the articles of war, the
also Ex parte Milligan, 4 Wall. 2;
Ex parte Reed, 100 U. S. 13.
1 Smith v. Whitney, 116 U. S. 167.
2 High on Extraordinary Leg. Re
(3d ed.) 720–732. -
3 “As the phrases “martial law.”
and ‘military law” are sometimes
Carelessly used as meaning the same
thing, it is proper to point out the
broad distinction between them. The
constitution authorizes congress to
raise and support armies, and to make
rules for the government thereof.
Acting under this authority, congress
has passed divers acts prescribing
the rules and articles of war, and
providing for the government and
discipline of the troops. These rules
constitute the military law, and are
directly sanctioned by the constitu-
tion, but they apply only to persons
in the military or naval service of
the government.
“What is called martial law, how-
ever, has a far wider Scope and ap-
plication. When once established, it
is made to apply alike to citizen and
soldier. To call this system by the
name of law seems something of a
misnomer. It is not law in any
proper sense, but merely the will of
the military commander, to be exer-
cised by him only on his responsibil-
ity to his government or superior
officer. Sir Mathew Hale said (Hist.
C. L. 54): “It is in truth and reality
no law, but something indulged
rather than allowed as law; and the
principle was re-asserted in the bill
of rights of 1688. In the case of
Grant v. Gould, 2 H. Blk, 99, de-
cided in the year 1792, Lord Lough-
borough said that martial law, in the
Sense in which we are now consider-
ing it, did not exist in England, was
Contrary to the constitution, and had
been for a century totally exploded.
We make these references merely to
illustrate how odious this system is
to the spirit of liberty and good gov-
ernment.” Johnson v. Jones et al.,
44 Ill. 142.
4A retired army officer so long as
he is drawing pay and in the organi-
zation (ClassOn. V. Armes, 7 App. Cas.
Dist. Col. 460; United States v.
IFletcher, 148 U. S. 84), and a paymas-
ter’s clerk in the naval service, are
within the jurisdiction. Johnson v.
Sayre, 158 U. S. 109.
410 WAR AND MILITARY POWER. [$ 362.
rules and regulations of congress and the ancient usages and
practices of military tribunals. The militiaman may be called
out by the Order of the president, or by the order of the gov-
ernor on a requisition of the president, and when called (and
from that time only) he is subject to the military law, and for
refusal may be tried and fined or imprisoned, either under the
procedure established by the state or by the United States, and
his property seized on execution to pay the penalty, or he be
imprisoned or subjected to degradation, deprivation of pay, or
any of the usual punishments inflicted by military authority."
Over this jurisdiction the civil courts have no authority or
supervision, and they have no means of arresting the progress
or execution of the decrees of the military courts except only
where there is a want of jurisdiction in the tribunal attacked.”
SEC. 362. Due Process of Law.—Due process of law, in cases
arising under offenses against the military code, does not require
the same formalities which are guarantied under the civil and
criminal laws of the state. -
The jurisdiction of the military tribunal is to enforce the
military law and punish its infractions. It has nothing to
do with the punishment of crimes against the municipal law,
although the same act may be an infraction of both.” The mili-
tary tribunal is confined in its jurisdiction, and must leave
the punishment of offenses against the municipal law to the
municipal courts.” The military authorities must, however,
keep within their jurisdiction and proceed according to the
regular requirements of the express law and recognized usages
Or their acts will be Void, and all persons performing them may
be but trespassers.” -
1 Martin v. Mott, 12 Wheat. 18.
2 Wales v. Whitney, 114 U. S. 564.
* Classon v. Armes, 7 App. Cas.
Dist. Col. 460. See also Winthrop's
Military Law, vol. 1, p. 137.
4 People v. McLeod, 25 John. 483.
5 “Courts-martial derive their ju-
risdiction and are regulated with us
by an act of congress, in which the
crimes which may be committed,
the manner of charging the accused,
and of trial, and the punishments
which may be inflicted, are expressed
in terms; or they may get jurisdic-
tion by a fair deduction from the
definition of the crime that it com-
prehends, and that the legislature
meant to subject to punishment One
of a minor degree of a kindred char-
acter which has already been recog-
nized to be such by the practice of
courts-martial in the army and navy
services of nations, and by those
functionaries in different nations to
whom has been confided a revising
power over the sentences of courts-
§ WAR AND MILITARY POWER.
~
411
363.] SEC. 363. War.”— Congress is given the exclusive power of
declaring war, and this power is not confined to declaring for-
eign war. It has the same power to levy war to suppress a
rebellion.”
It is obvious that a state of war may be brought about with-
out any action being taken on the part of congress, and a war
may be prosecuted without any declaration of war actually ex-
isting; and it is equally obvious that every act which has been
taken leading to this state may have been taken without the
consent of congress and the president, or acts of war may have
been committed by our naval or military forces.
It is not customary for the original government, in case of
insurrection, to declare a state of civil war to exist, the reason
martial. And when offenses and
-Crimes are not given in terms or
by definition, the want of it may
be supplied by a comprehensive en-
actment such as the thirty-second
article of the rules for the govern-
ment of the navy, which means that
courts-martial have jurisdiction of
such crimes as are not specified, but
which have been recognized to be
crimes and offenses by the usages in
the navy of all nations, and that they
shall be punished according to the
laws and customs of the Sea. Not-
withstanding the apparent indeter-
minateness of such a provision, it is
not liable to abuse; for what those
crimes are, and how they are to be
punished, is well known by practical
men in the navy and army and by
those who have studied the law of
courts-martial and the offenses of
which the different courts-martial
have cognizance. With the sen-
tences of courts-martial which have
been convened regularly and have
proceeded legally, and by which pun-
ishments are directed, not forbidden
by law, or which are according to
the laws and customs of the sea, civil
Courts have nothing to do, nor are
they in any way alterable by them.
If it were otherwise the civil courts
would virtually administer the rules
and give him redress.
and articles of war irrespective of
those to whom that duty and obliga-
tion has been confided by the laws
of the United States, from whose de-
cisions no appeal or jurisdiction of
any kind has been given to the civil
magistrate or civil courts. But we
repeat, if a court-martial has no ju-
risdiction over the subject-matter of
the charge it has been convened to
try, or shall inflict a punishment for-
bidden by the law, though its sen-
tence shall be approved by the offi-
cers having a revisory power of it,
civil courts may, on an action by a
party aggrieved by it, inquire into
the want of the court’s jurisdiction
(Harman v.
Tappenden, 1 East, 555. As to min-
isterial officers, Marshall’s Case, 10
Cr. 76; Morrison v. Sloper, Wells,
30; Parton v. Williams, B. & A. 830;
and as to justices of the peace, by
Lord Tenterden, in Basten v. Carew,
3 B. & C. 653; Mules v. Calcott, 6
Bins. 85.)” Dynes v. Hoover, 20
HOw. 65.
1 It is not the intention to here
enter upon the subject of foreign war,
or war as a question of international
law, but to limit the treatment to a
question of power under these Sec-
tions of the constitution.
2 Tyler v. Defrees, 11 Wall. 331.
412 WAR AND MILITARY PowH.R. [$ 364.
being to avoid the recognition of a state of war by foreign
powers rather than a state of insurrection."
Declarations of congress, whether express declarations of war
or acts in recognition of it, are ultimate and conclusive upon the
question as to whether war actually exists.”.
SEC. 364. The Effect of Civil War on Civil Laws.-The
effect of a civil war is to throw all of the territory within which
hostilities are raging within the dominion of the military power,
and it is within the recognized customs of war for those who
have, or claim to have, the authority, to dispense with the
municipal law and establish in its stead what is called martial
law. -
This martial law is not a law governing those actually en-
gaged in the army, but extends to all persons and all property
within, the territorial jurisdiction.
|Under the sanction of war military governments may be es-
tablished over the conquered or subdued territory, and such
governments may be prosecuted and maintained until a regular
state of municipal law can be organized and established.
This idea of martial and military government proceeds from
the necessities of the case, but it is not without bounds; neither
under the constitution of the United States is it an arbitrary
power, nor are the rights of the citizens beyond the control of
the courts.”
1 Prize Cases, 2 Black, 667.
2 Talbot V. Seeman, 1 Cr. 28. See
also Bass v. Tingey, 4 Dall. 37.
3 The power to declare martial law
and to suspend the writ of habeas
corpus and all other civil process and
jurisdiction is a power which has re-
ceived able discussion, and the decis-
ions of our highest tribunals have
fixed safe and certain bounds upon its
exercise, even if the instances cannot
be communicated by any general
expression of opinion or definition.
Among the ablest of these expositions
is that of Johnson v. Duncan, 3 Mart.
(La.) 500; 6 Am. Dec. 674. The case
arose by reason of General Jackson’s
proclamation of military law in
Louisiana during the war of 1812. In
Truther v. Borden, 7 How. 1–83, the
court recognized the doctrine estab-
lished by this case, that a state of
war may exist on principles of na-
tional law, whereby a commanding
officer may be justified in extending
certain rights of war, not only over his
camp and its environments, but the
near field of his military operations;
but even then they do not supersede
the regular operations of the courts
upon citizens not actually engaged in
the strife. The student can be given
nothing which will be a substitute
for the perusal of this case and Ex
parte Milligan, 4 Wall. 2.
CEIAPTER XX.
POSTOFFICE, POST ROADS—INTERNAL IMPROVEMENTS.
SEC. 365. A Postal Service.—The direct power to organize,
manage and control the postal service of the United States
has, as a matter of course, never been the subject of question
because of the express power given by the seventh clause of
section 8, article I, of the constitution.
The incidental powers supposed to be proper and necessary
to protect and render efficient this department of the service
are the only ones which have occasioned any disagreement
and controversy.
Under the designation of “post roads” are included all the
avenues or means of travel which may be utilized in the car-
rying of the mails. All the streets in the cities which are des-
ignated as mail routes or letter-carrier routes are post roads,
as are all railroads which are appropriated or used for this pur-
pose."
The United States has the power to establish by indicating
what routes are post roads, to construct by actually condemn-
ing and building of post roads, consisting of artificial highways
or water-ways, or it may lease of the owners; but the authority
confided in the postoffice department, which at this time is
exercised by the postmaster-general, does not authorize him to
make a lease for a long term of years, in the absence of an ap-
propriation by congress for that purpose.”
they might pass under it. In a later
Case a similar act was held to abate
1 St. Louis v. Western Union Tel.
Co., 148 U. S. 92. Also United States
v. Union Pacific Ry. Co., 160 U. S.
40. In Pennsylvania v. Wheeling &
Belmont Bridge Co., 18 How. 421,
the bridge which had been con-
demned as an obstruction to naviga-
tion was by act of congress declared
to be a post road, and it was held that
this act changed its character and
made it lawful. The same act pro-
vided that boats must lower their
chimneys and be so constructed that
a suit brought to enjoin the construc-
tion of a bridge. The Clinton Bridge,
10 Wall. 454.
2 Chase v. United States, 155 U. S.
489. President Monroe, in his mes-
Sage of December 2, 1823, says that
“there is established, by law, eighty-
eight thousand six hundred miles of
post roads, on which the mail is
now transported eighty-five thousand
Seven hundred miles.”
414 PostoRFICE, ETC.—INTERNAL IMPROVEMENTS. [$ 366.
Incident to the power to establish and regulate the postal
system of the United States is that of prescribing the manner
of the use and prohibiting the improper use of the mails; and
so congress has exercised the power to prohibit the improper
use of the mails for fraud and improper communications, Ob-
scene literature, etc." -
Congress has the right to, and does, require that communi-
cations between individuals located at distant points from each
other shall not be carried by private carriers without compen-
sation, and may and does require that the same shall be depos-
ited in the postoffice and pay the public charge. .
SEC. 366. Internal Improvements.-The power of the general
government to erect and maintain public highways, water-ways
and such public improvements as are incident thereto in the
interests of commerce or the public postal or military service
became at an early period the subject of sharp difference of
opinion between statesmen. Notwithstanding the doubts ex-
pressed by the executives, the prevailing sentiment of congress
seems always to have been in favor of the power, and a liberal
spirit has been exhibited in its exercise.
President Monroe, in his message of December 2, 1817, stated
that in his view congress had not the power to establish a system
of internal improvements, but on account of the immense im-
portance to the Union of such a power, he felt constrained to
suggest the propriety of recommending to the states the adop-
tion of an amendment to the federal constitution conferring
such power upon the general government. This suggestion has
never been acted upon.
Five years later, while adhering to the same opinion, he recom-
mended that congress should maintain and repair the Cumber-
land road, which had already been constructed under an act of
congress of 1806; and in his message of December 2, 1823, he
recommended that a commission be appointed to investigate
the feasibility of connecting the waters of the Chesapeake Bay
and the Ohio river by one continuous canal, which in his opinion
might be constructed at an expense far short of the value and
importance of the object to be attained.”
1 In re Rapier, 143 U. S. 110. Also 2 President John Quincy Adams, in
Borner v. United States, id. 207; his inaugural address of March 4,
Dunlop v. United States, 165 U. S. 1825, approached the topic in no un-
286. certain terms. He says: “To the
§ 366.]
415.
POSTOFFICE, ETC.— INTERNAL IMPROVEMENTs.
From this time whatever scruples had existed as to the gen-
eral power to construct internal improvements seem to have
disappeared, and, as shown by the message of President Adams
of December 4, 1827, the government had embarked upon ex-
tensive operations in improving the means of communication
in various parts of the United States."
“9. On the survey of Saugatuck
harbor and river.
“10. On a canal from Lake Pont-
Chartrain to the Mississippi river.
“11. On Surveys at Edgartown,
Newburyport and Hyannis harbor.
“12. On Survey of La Plaisance
Bay, in the territory of Michigan.
“And reports are now prepared,
and will be submitted to Congress:
“On surveys of the Peninsula of
Florida, to ascertain the practicabil-
ity of a Canal to connect the waters of
the Atlantic with the Gulf of Mex-
ico, across that peninsula, and also
of the country between the bays of
Mobile and of Pensacola, with the
view of connecting them together by
a Canal.
“On surveys of a route for a canal
to connect the waters of James and
Great Kenawha rivers.
“On the survey of the Swash and
Bamlico Sound, and that of Cape
Pear, below the town of Wilming-
ton in North Carolina.
topic of internal improvements, em-
phatically urged by him (Monroe) at
his inauguration, I recur with pe.
Culiar satisfaction. It is that from
which I am convinced that the un-
born millions of our posterity, who
are in future ages to people this con-
tinent, will derive their most fervent
gratitude to the founders of the
Union; that in which the beneficent
action of its government will be most
deeply felt and acknowledged.”
1 The light in which such objects
were rogarded and the extent to
which they were pushed may be
gathered from the following extract
from that message:
“Of the surveys which, before the
last Session of Congress, had been
made under the authority of the act
of 1824, reports are made:
“1. Of the board of internal im-
provement on the Chesapeake and
Ohio canal.
“2. On the continuance of the na-
tional road from Cumberland to the
tide waters within the District of
Columbia.
“3. On the continuation of the na-
tional road from Canton to Zanes-
ville.
“4. On the location of the national
road from Zanesville to Columbus.
“5. On the continuation of the same
road to the seat of government in
Missouri.
“6. On a post road from Baltimore
to Philadelphia.
“7. Of a survey of Kennebec river
(in part).
“8. On a national road from Wash-
ington to Buffalo.
“On the survey of the Muscle
Shoals in the Tennessee river, and
for a route for a contemplated com-
munication between the Hiwassee
and Coosa rivers in the state of Ala-
bama.” -
He mentions “the appropriations
for the repair and continuation of
the Cumberland road, and for the
construction of various other roads,
for the removal of obstructions from
the rivers and harbors, for the erec-
tion of light-houses, beacons, piers
and buoys, and for the completion of
canals wºndertaken by individual as-
sociations, but needing the assistance
416 POSTOFFICE, ETC.— INTERNAL IMPROVEMENTS.
[$ 367.
Tresident Jackson recognized that the question of power had
passed beyond the pale of discussion by uniform usage, but
suggested the dangers of fraud, dissension and local prejudice
which would arise by making local improvements in harbors
and streams and by the erection of short roads wholly within
a state; but all these views have given way to the evident and
imperative demands of commerce, convenience of the general
government, military operations, and the necessity for making
the postal service efficient.
The question, however, has been taken from the public view,
in a way never anticipated by those who were exercising these
powers before the invention of the steam railway and the mod-
ern use of that means of communication, through the medium
of railroad corporations. -
SEC. 367. Government Aid to Corporations Incident to this
Power.—President Jackson expressed his approbation of direct
appropriations in any way calculated to advance the interests
of commerce, navigation, the postal service or public improve-
ments, the direct object of which was the public benefit; but
he refused his assent to all bills introduced into congress author-
izing subscriptions to stock incorporations owned, or in part
controlled, by private persons."
of means and resources more compre-
hensive than individual enterprise
can command, may be considered
rather as treasures laid up from the
contributions of the present age, for
the benefit of posterity, than as un-
requited applications of the accru-
ing revenues of the nation. To such
objects of permanent improvement
to the condition of the country, of
real addition to the wealth, as well
as to the comfort, of the people, by
whose authority and resources they
have been effected, from three to
four millions of the annual income
of the nation have, by laws enacted
at the three most recent sessions of
congress, been applied, without in-
trenching upon the necessities of the
treasury.”
1 “The act now returned does SO in
several particulars, but it also con-
tains appropriations for surveys of a
local character, which I cannot ap-
prove. It gives me satisfaction to
find that no serious inconvenience
has arisen from withholding my ap-
proval from this bill; nor will it, I
trust, be cause of regret, that an op-
portunity will be thereby afforded
for congress to review its provisions,
under circumstances better calcu-
lated for full investigation than those
under which it was passed. -
“In speaking of direct appropria-
tions, I mean not to include a prac-
tice which has obtained to some ex-
tent, and to which I have, in one
instance, in a different capacity,
given my assent—that of subscrib-
ing to the stock of private associa-
tions. Positive experience, and a
more thorough consideration of the
subject, have convinced me of the
§ 367.] POSTOFFICE, ETC.— INTERNAL IMPROVEMENTS.
4.17
The history of the legislation of the United States since the
beginning of the governmental aid to the Pacific Railway
shows the wisdom of these objections of President Jackson,
and the result has proven how great has been the loss to the
general government pecuniarily, and to the people of the
United States in the problem of self-government, by the crea-
tion of the system of patronage to private corporations en-
gaged in enterprises essentially public in their nature.
The power of the general government to establish internal
improvements is no longer an open question. The practice of
granting to private persons the funds or property of the United
States, or mingling them with the funds promised (but seldom
furnished) by private persons, is too well established to be any
longer questioned upon constitutional grounds. The history
of land grants, bond issues and government loans to the rail-
roads of the country, under the power to establish post roads
and provide for the general defense, is a part of the political
and judicial history of the nation."
impropriety as well as inexpediency
of such investments. All improve-
ments effected by the funds of the
nation for general use should be
open to the enjoyment of all our fel-
low-citizens, exempt from the pay-
ment of tolls, or any imposition of
that character. The practice of thus
mingling the concerns of the govern-
ment with those of the states or of
individuals, is inconsistent with the
object of its institution, and highly
impolitic. The successful operation
of the federal system can only be
preserved by confining it to the few
and simple, but yet important, ob-
jects for which it was designed.
“This mode of aiding such work is
also, in its nature, deceptive, and, in
many cases conducive to improvi-
dence in the administration of the
national funds. Appropriations will
ide obtained with much greater fa-
cility, and granted with less secu-
rity to the public interest, when the
measure is thus disguised, than when
definite and direct expenditures of
money are asked for. The interest
of the nation would doubtless be bet-
ter served by avoiding all such in-
direct modes of aiding particular
objects. In a government like Ours,
more especially, should all public acts
be, as far as practicable, simple, un-
disguised and intelligible, that they
may become fit subjects for the ap-
probation or animadversion of the
people. The bill authorizing a sub-
scription to the Louisville and Port-
land canal affords a striking illus-
tration of the difficulty of withhold-
ing additional appropriations for the
Same object, when the first erroneous
step has been taken by instituting a
partnership between the government
and private Companies. It proposes
a third subscription on the part of
the United States, when each preced-
ing one was at the time regarded as
the extent of the aid which govern-
ment was to render to that work.”
Jackson's Message, December 7, 1830.
1 See Green Bay & M. Co. v. Patten
Co., 19 Sup. Ct. Rep. 97.
27
418 POSTOFFICE, ETC.—INTERNAL IMPROVEMENTs. - [šš 368, 369.
SEC. 368. Grants to States to Assist Them in Public Im-
provements.-Very early a practice obtained of granting to
states and territories a certain part of the public domain to aid
them in improving navigation or in the construction of roads.
So on the 8th of August, 1846, a grant of land was made to
the territory of Iowa for the purpose of aiding said territory
in improving the Des Moines river, and on the same day a
similar grant was made to Wisconsin to aid it in improving the
Wisconsin and Fox rivers, connecting the same by a canal; and
in 1852 congress granted seven hundred and fifty thousand
acres of land to the state of Michigan for the improvement of
the Saint Marie river by constructing a canal around the rapids
thereof."
SEC. 369. Grants to States to Aid Private Enterprises.—In
1850 grants were made by the United States of land lying
within several states for the benefit of constructing a railway
from some point in southern Illinois to the Gulf of Mexico.”
1 Dubuque & Pac. R. R. Co. v. Litch-
field, 23 How. 66. In 1841 congress
passed an act granting half a million
acres of land to several of the states
for public improvements. Wolsey v.
Chapman, 101 U. S. 755.
2 The policy of the state of Illinois
in the matter of the Illinois Central
Railroad is worthy of remark. It
reserved seven per cent. Of the gross
earnings of the road. The road has
not perished, and the result to the
state may be gathered with the les-
son in political science from the fol-
lowing extract from Cook’s “The
Corporation Problem,” p. 202:
“The report of the Illinois rail-
road commission for the year 1875
shows that the corporation received
from the government 2,595,000 acres
of land, of which it had up to 1875
sold $31,000,000 and had remainin
over 200,000 acres. - -
“In exchange for this and its fran-
chise the state of Illinois reserved an
interest in the profits of seven per
cent. On the gross earnings.
“The following is an extract from
the message of the governor of Illi-
nois to the legislature in 1891:
“‘Under the wise provision which
retained to the state an interest to
the extent of seven per cent. of the
grOSS earnings of the road, to be
paid annually into the state treas-
ury, there has been paid to the state,
all told, for the years from 1855 to
1890, inclusive, the sum of $12,365,618.
Upon the $40,000,000 of capital stock
of the company paid in, there was
paid as dividends in the same period
the sum of $64,782,357, showing that
an amount slightly exceeding nine-
teen per cent. of the total paid as
dividends has been turned into the
State treasury, or a sum equal to six-
teen and three-hundredths per cent.
of the whole sum paid both to the
state and upon stock. The last year
the state's seven per cent. of gross.
earnings paid amounted to $486,281,
and on said $40,000,000 of stock were
distributed as dividends $2,400,000,
the state's portion being nearly seven-
teen per cent, of the whole amount
So paid. The showing for the last
§ 370.] POSTOFFICE, ETC.—INTERNAL IMPROVEMENTS.
419
In 1853 a similar grant was made to Missouri to aid in the
construction of a railway."
In 1856 a similar grant was made by the United States to
the state of Michigan in aid of another railroad;” and in the
same year a similar grant was made to the state of Wisconsin
in aid of the construction of the Chicago Northwestern Rail-
road. -
The supreme court, in speaking of this grant, characterizes
this action as a new policy adopted by congress to aid states
by grants to build railroads; and say further that the grant in
question was an ordinary one to build a road in Wisconsin, for
which a change of route was desirable, after the line had been
located. This change was authorized by congress.”
SEC. 370. Direct Grants of Financial Aid to Private Corpo-
rations in Aid of Enterprises of Great Public Interest.— At a
later period a new policy was inaugurated in reference to the
encouragement of public improvements and the carrying Out of
the great design of the framers of the constitution in connect-
ing all parts of the country by systems of communication for
post and military roads and avenues of commerce.
This was the policy of granting directly to private corpora-
tions or individuals large portions of the public domain, and of
extending financial aid and assistance directly to them. Typical
of all others are what are known in the history of the United
States as the Pacific Railway grants."
six months ending October 31, 1890,
gives the state as its seven per cent.
of earnings $257,219, or at a rate
which would make the income of
the state from this source over half
a million per year, exceeding in
amount any other half year in the
history of the road. On the whole,
I think the rapid increase in the
state's revenues from this source, in
late years, rising as they have from
$367,799 in 1885 to $486,281 in 1890,
presents an encouraging prospect,
and speaks well for the efficiency of
the present management of the com-
pany. The further building of new
Competing lines of railroad having
entirely ceased, there seems cause
to hope for a gradual and healthy
growth in the revenue of the lines,
in which the state will share with
the owners of the stock.’”
“A like grant was made in 1866 to
the state of Kansas for the use and
benefit of the St. Joseph & Denver
City Ry. Co., but in this case the
title to the land was to go directly
to the corporation. On performing the
conditions.” Van Wyck v. Knevals,
106 U. S. 364,
1 Chouteau v. Allen, 70 Mo. 290.
2 Rogers v. Port Huron Ry. Co., 45
Mich. 460.
3 Eldred v. Sexton, 19 Wall. 189.
4 Out of these schemes grew the
Credit Mobilier scandals, which, like
420 POSTOFFICE, ETC.— INTERNAL IMPROVEMENTs. [$ 370.
In 1862 one Walter S. Burgess and others obtained a charter
directly from the United States to build a transcontinental road
which should connect the Pacific Ocean with some point on the
Missouri river, and in consideration of the undertaking the cor-
poration was to be given, as the work progressed, large dona- .
tions of land out of the public domain, and also direct financial
aid, and were to be the owners of the road when built; and
in return therefor the company were obligated to do the gov-
ernment's transportation at rates not to exceed amounts paid
private parties for transporting the mails, government supplies,
government troops, etc.; and it was also provided that all charges
to be made were to be applied to the payment of bonds which
were to be given to secure the repayment of the advances made
by the general government, and that after the completion of
the road, and until the bonds and interest were paid, at least
five per cent. Of the net earnings should be annually applied to
the payment thereof.
Two years later additional donations were made, and the
privilege was given to the corporation to issue its bonds to pri-
vate parties to an amount not exceeding the amount issued to
it by the United States, and allowing the execution of a mort-
gage which should be a paramount lien to the lien of the gov-
ernment. *
In 1871 the requirement that the compensation for the gov-
ernment use of the road should be credited on the government
obligations was changed and modified so that one-half of such
compensation might be paid to the corporation." -
a storm, strewed the shore of the
political sea with wrecks of great
names, and seems to have destroyed
the crop of patriots.
1 United States v. Union Pac. R. R.
Co., 91 U. S. 72. That the obligations
due to the government have not been
paid need not be expressly stated.
Mr. Justice Davis says: “The Union
Bacific Railroad Company, conced-
ing the right of the government to
retain one-half of the compensation
due it for the transportation of the
mails, military and Indian supplies,
and apply the same to reimburse the
government for interest paid by it on
bonds issued to the corporation to
aid in the construction of its railroad
and telegraph line, seeks to establish
by this suit its claim to the other
moiety. The United States, on the
other hand, having paid interest on
these bonds in excess of the sums
credited to the company for services
rendered by it, insist upon their right
to withhold payment altogether.
One of the grounds on which this
right is sought to be maintained is
by reason of the general right of set-
off, which, as a general proposition,
§ 370.]
POSTOFFICE, ETC.— INTERNAL IMPROVEMENTs. 421
As remarked by Mr. Justice Davis, the provisions of the
original act of 1862 were entirely outside of the usual course of
legislative action concerning grants to railroads, and was intro-
duced and excused on account of conditions altogether extraor-
dinary, which consisted in the war-threatening attitude of Great
I3ritain and the imperative necessity of connecting and bind-
ing together all parts of the nation by public highways, afford-
ing the greatest possible facility for rapid communication.
The effect was to afford the required protection to the Pa-
cific states, and the public servants professed to act in the per-
formance of an imperative duty which could not justly withhold
the necessary aid for so great an enterprise; and so strong and
pervading was public opinion that it is by no means certain
that the people would not have justified congress if it had de-
parted from the then settled policy of the country regarding
works of internal improvement and charged the government
itself with the direct execution of the enterprise."
exists in the government, and is com-
monly exercised by it when settling
with those having claims against it.
But, manifestly, the rules applicable
to ordinary claimants for services
rendered the United States do not
apply to this controversy. The bonds
in question were issued in pursuance
of a scheme to aid in the construc-
tion of a great national highway. In
themselves they do not import any
obligation on the part of the corpo-
ration to pay; and whether, when
the United States have paid interest
On them, a liability to refund it is
imposed on the company, depends
wholly on the conditions on which
the bonds were delivered to and re-
ceived by it. These conditions are
embodied in the legislation of con-
gress on the subject; and if, on a
fair interpretation of it, the corpora-
tion is found to be now a debtor to
the United States, the deduction for
interest paid on the bonds can be
lawfully made. But, if the converse
of this proposition is true, the gov-
ernment cannot rightfully withhold
from the corporation one-half of its
earnings.” . . . “The act itself
was an experiment. It must be con-
sidered in the nature of a proposal
to enterprising men to engage in the
work, for, with the untried obstacles
in the way, there was no certainty
that capital could be enlisted. If en-
listed at all, it could only be on con-
ditions which would insure, in case
of Success, remuneration proportion-
ate to the risk incurred.” It was
held that under the acts of congress
the corporation was not required to
pay any interest until the maturity
of the bonds, and consequently the
government could not set off or com-
pensate interest paid by it against
charges against it for Services.
United States v. Union Pac. Ry. Co.,
91 U. S. 72, 78, 79, 82.
1 It is conceived that the direct
performance of this great public
service by constructing this great in-
ternal improvement by the govern-
ment, although at One time war-
ranted only by the liberal construc-
tion of the constitution, would have
422
[$ 370.
POSTOFFICE, ETC.— INTERNAL IMPROVEMENTs.
The great objects of the enterprise were sufficiently indicated
by the title of the act, “An act to aid in the construction of
a railroad and telegraph line from the Missouri river to the
Pacific ocean, and to secure to the government the use of the
same for postal, military and other purposes.”
been in harmony with the well-estab-
lished authority as admitted even by
President Jackson. By no construc-
tion ever before indulged could the
public domain of the general gov-
ernment, held in trust for the benefit
of the people, be donated to a private
corporation. Much less had the gen-
eral government any power to pledge
its credit for such a purpose.
Mr. William W. Cook, the author
of the noted treatise on Stock and
Stockholders, speaking of municipal
and government aid, gives the fol-
lowing facts, and cites the follow-
ing cogent facts on this subject:
“The lament of Judge Dillon. On
this subject reminds one of the
thoughts of Macaulay’s New Zea-
lander overlooking the ruins of LOn-
don from the London Bridge. In his
great work on Municipal Corpora-
tions, the author says: ‘If it be al-
lowable to judge of a legal principle
by its fruits, the dissenting and mi-
nority judges on this question (the
general question of public aid to pri-
vate corporations) will find much to
confirm the conviction that their
views were sound. But it is useless
to fight that battle again; it has been
fought and lost. All that is left is
the contemplation and contrast of
what might have been and what is.”
Dillon on Municipal Corporations
(3d ed.), p. 508, n. See also Cooley's
Const. Lim. (5th ed.), 265, etc.
“‘The cities, towns and states have
not been alone in granting aid to rail-
roads. The federal government some
twenty-five years ago commenced
making grants of land to trunk lines
of railroad to be constructed to the
Facific coast. The total grant made
to the Union Pacific Railway was
13,000,100 acres; to the Kansas Pa-
cific, 6,000,000; to the Central Pacific,
12,100,100; to the Northern Pacific,
47,000,000; to the Atlantic & Pa-
cific, 42,000,000; to the Southern Pa-
cific, 9,520,000. Great subsidies of
money exceeding $60,000,000 were
also granted by congress to the first
transcontinental lines. The land
grants by congress consisted of alter-
nate sections; in the earlier cases, of
five to the mile along the line.’ See
Bryce's American Commonwealth,
vol. II, p. 507, n.
“The Encyclopedia Britannica,
page 254, states that 200,000,000 acres
of land and $13,000,000 [this is
$130,000,000, the sum is vastly more]
were given at One time and another
by congress to the railroads between
the Missouri river and the Pacific
OCéall.
“Adams on Public Debts, page 356,
note, says that previous to 1880 con-
gress had granted 215,000,000 acres of
land to railroads and canals, of which
titles were secured to 150,000,000
acres.” Cook’s Corporation Problem,
pp. 97, 98.
The learned justice adds: “Al-
though a free people, when resolved
upon a course of action, can accom-
plish great results, the scheme for
building a railroad two thousand
miles in length, over deserts, across
mountains, and through a country
inhabited by Indians jealous of in-
trusion upon their rights, was uni-
versally regarded at the time as a
bold and hazardous undertaking. It
is nothing to the purpose that the
§ 370.] POSTOFFICE, ETC.— INTERNAL IMPROVEMENTS.
423
That there should remain no doubt as to the character of
the act, however, the body of it contains a recital similar to
an English preamble, containing the words, “And the better
to accomplish the object of this act, namely, to promote the
public interest and welfare by the construction of said rail-
road and telegraph line, and keeping the same in working
Order, and to secure to the government at all times (but par-
ticularly in time of war) the use and benefits of the same for
postal, military and other purposes, congress may at any time,
having due regard for the rights of said companies named
herein, add to, alter, amend or repeal this act.”
“Indeed,” adds the learned justice, “the whole act contains
unmistakable evidence that, if congress was put to the neces-
sity of carrying on a great public enterprise by the instrumen-
tality of private corporations, it took care that there should
be no misunderstanding about the objects to be attained or
the motives which influenced its action.” "
Of the wisdom of the act, regarded from the standpoint of
those who enacted it, there can be no doubt. Its unwisdom,
viewed in the light of the results already consummated, is pal-
pable. We who are looking backward, and with that advan-
tage, may venture the opinion that had the policy suggested
by Mr. Justice Davis been adopted, namely, the preservation
to the public of the ownership, control, management and profit
of the road, it would have been entirely feasible and would
have eclipsed all other achievements in the domain of political
and social economy.”
apprehended difficulties in a great
Imeasure disappeared after trial, and
that the road was constructed at less
cost of time and money than had
been considered possible. No argu-
lment can be drawn from the wisdom
that comes after the fact. Congress
acted with reference to a state of
things believed at the time to exist,
and, in interpreting its legislation,
no aid can be derived from subse-
Quent events. The project of build-
ing the road was not conceived for
private ends, and the prevalent opin-
ion was that it could not be worked
out hy private capital alone. It was
a national work, Originating in na-
tional necessities and requiring na-
tional assistance.” United States v.
TJnion Pac. R. R. Co., 91 U. S. 72–81.
1 United States v. Union Pac. R. R.
Co., 91 U. S. 82.
2The colossal proportions to which
this system of public aid to private
corporations engaged in public en-
terprises for private gain has been
carried may be gathered from a con-
templation of the great land grants,
some of which have been noticed,
but only a few of which, however,
can be here enumerated:
To the Atchison, Topeka & Santa.
424 POSTOFFICE, ETC.—INTERNAL IMPROVEMENTS.
[$ 371.
SEC. 371. The Power is a Limitation on State Power.—
Whatever instrumentality brings itself within, or shields itself
under, the commerce clause of the United States, or the power
of congress over postoffices and post roads, or both, cannot be
excluded from the use of any national post road by the action
of the states; and although under ordinary circumstances a
state may exclude a corporation of any other state from doing
business within its boundary, and while it is also true that cor-
porations are not within the clause of the constitution that
the citizens of each state shall be entitled to all immunities
and privileges in the several states, yet a state cannot grant
to a particular person or corporation exclusive rights to trans-
act business properly within the control of the state: e.g., the
business of telegraphing or common carriage. Yet such an
exclusive state franchise granted to a person or corporation
cannot prevent a foreign citizen or corporation from transact-
ing all business falling legitimately within the provisions of an
act of congress regulating the postal service or post roads or
interstate commerce, and a corporation is within the privileges
granted by such an act of congress unless expressly excluded.”
Fe Ry. Co.: Neer v. Williams, 27
ECan. 1; 10 Am. & Eng. Dec. 561.
Burlington & Missouri River land
grant: Hunnewill v. Cass Co., 3 Dill.
313, 22 Wall. 464; United States v. B.
& M. Ry. Co., 98 U. S. 334; Wood v.
Railway Co., 104 U. S. 329.
To the Central Pacific road: Ryan
v. Central Pac. Ry. Co., 99 U. S. 382.
St. Joseph & Denver City Ry. Co.:
106 U. S. 360. -
Des Moines river grants: 101 U. S.
'755.
Iowa Central Ry. Co.: 21 Wall, 310.
Rock Island & Pacific Ry. Co.: 103
TJ. S. 739.
See Lacey's Railway Digest, title.
Tand Grants.
1 Art. IV, Sec. 2. See Paul V. Vir-
ginia, 8 Wall. 168.
2 Pensacola, Tel. Co. v. W. U. Tel.
Co., 96 U. S. 1. This privilege does
not exempt the individual or corpo-
ration from proper taxation. W. U.
Tel. Co. v. Taggart, 169 U. S. 1. Nor
grant any privilege to take or occupy
property or a highway without com-
pensation. St. Louis v. W. U. Tel.
Co., 148 U. S. 92.
CHAPTER XXI.
FEDERAL EXECUTIVE.
SEC. 372. The office of president of the United States is cre.
ated by constitutional provision."
Standing alone, this provision seemingly vests the entire
executive power in a single individual, and it results that all
Subordinate officers in the executive department are mere depu-
ties of the president. This is true, except where the office is cre-
ated by congress, e.g., the Interstate Commerce Commission.
The constitution makes no reference to any subordinate exec-
utive Office or department, excepting that provision which em-
powers the president “to require the opinion in writing of the
principal officer in each of the executive departments.”
The granting part of article I, section 8, clause 17, authorizes
Congress “to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers and all other
powers wested by this constitution in the government of the
|United States or in any department or officer thereof.” -
In the debates in the convention, Colonel Mason said that
“in rejecting a council to the president we were about to try an
experiment on which the most despotic government had never
ventured. The grand seignior himself had his divan.”
Franklin and Wilson both favored the motion for a council,
but the express provision therefor was negatived.
The intention seemed to be to vest in a single individual the
whole power of executive magistracy and to render him per-
sonally responsible for the execution of that high office.
There is an express injunction in the constitution that the
president shall take care that the laws shall be faithfully exe-
cuted,” a provision which many of our presidents have had
occasion to acknowledge.
In accordance with the policy to depart from the English
1 Sec. 1, art. II: “The executive *Art. II, sec. 3, cl. 8,
power shall be vested in a president
of the United States of America.”
426 FEDERAL EXECUTIVE.
[$$ 373, 374.
principle that the king can commit no wrong, and that his
ministers were responsible for all miscarriages in the executive
department, the president had no stated counselors appointed
for him by the constitution."
SEC. 373. Eligibility, Tenure and Election.— The constitu-
tion creates the office and prescribes the qualifications and mode
of election.
It also provides for the election of two persons who may be
the president: one to the office, the other called a vice-president,
who may, or may not, be called upon to exercise the duties of
that office; and who, in Order that he may be present and ex-
ercise some office of dignity, is, as we have seen, invested with
the presidency of the senate. These persons must be natural-
born citizens.”
To be eligible, they must have attained the age of thirty-five
years and have been fourteen years a resident of the United
States. - r
SEC. 374. Flection.—The election of the president and vice-
president was a question of no little difficulty.
The constitution provides that the election shall be by an
electoral college chosen by the states. Each state shall appoint,
in such a manner as the legislature shall direct, a number of
electors equal to the whole number of senators and represent-
atives in the state; but no incumbent of the office of senator
or representative in congress may be appointed elector.
The methods of conducting elections of the president are pro-
vided for in the constitution and amendments thereto, have been
1 “In the United States,” says Wil- ple. The tenure of his office, it is
son, “our first executive magistrate
is not obnubilated behind the mys-
terious obscurity of counselors.
Power is communicated to him with
liberality, though with ascertained
limitations. To him the provident
or improvident use of it is to be as-
cribed. For the first, he will have
and deserve undivided applause. Tor
the last, he will be subject to cen-
sure; if necessary, to punishment.
He is the dignified but accountable
magistrate of a free and great peo-
true, is not hereditary; nor is it for
life; but still it is a tenure of the
noblest kind; by being a man of the
people, he is invested; by continu-
ing to be a man of the people, his in-
vestiture will be voluntarily and
cheerfully and honorably renewed.”
1 Wilson's Works, 400.
? Or, at the time of the adoption
of the constitution, citizens of the
TJnited States—a qualification now,
of course, no longer operative.
§ 375.] IFEDERAL EXECUTIVE. 42'ſ
changed from time to time, and are subject to change at any
time.
So far as the actual conduct of these elections is concerned
they are under the supervision of the states; but the general
government has had occasion, during and since the reconstruc-
tion period, to interfere in the conduct of elections." The power
of the state is not abrogated, and the state may regulate the
conduct of elections and punish fraudulent voting for electors.”
Messrs Gould and Tucker point out that “The second clause
of article II of the constitution was not amended by the four-
teenth and fifteenth amendments, and under it the state legis-
latures have exclusive power to direct the manner in which the
electors of president and vice-president shall be appointed.”
SEC. 375. Relation of the Bacecutive to the Law-making
Power.—The veto power of the president is a common instance
of the influence which the president may exert upon legisla-
tion.
The veto is qualified to the extent that a bill returned by
the president to congress must be passed by a two-thirds vote
of that body. He has an important part in the making of
amendments to the constitution.* - ->
Direct Participation of the Evecutive.—The vice-president,
who is an incumbent of the executive branch of the govern-
ment, presides over the deliberations of the senate, and in case
of a tie his vote may decide whether an act shall become a law
or not. Thus the executive branch has an indirect and a di-
rect influence on legislation.” -
The president, however, has a far greater and more direct
influence in the making of the laws than either of the two
methods above noticed. He has the power, by and with the
advice and consent of the senate, to make treaties. Under our
constitution a treaty is a part of the supreme law of the land;
1 See R. S. U. S., title XXVI; Ex
parte Yarbrough, 110 U. S. 651.
2 In re Green, 134 U. S. 377. “The
Congress may determine the time of
choosing the electors, and the day on
which they shall give their votes;
which days shall be the same through-
out the United States.” Art. II, sec.
1, cl. 4.
32 Gould and Tucker, 9. See Mc-
IPherson v. Blacker, 146 U. S. 1.
4 See Virginia v. West Virginia, 11
"Wall. 62.
5 Art. I, Sec. 3, cl. 4: “The vice-
president of the United States shall
be president of the senate, but shall
have no vote unless they are equally
divided.”
428 ITEDERAL IXECUTIVE. [$$ 376, 377.
so much so that acts of congress contrary to those treaties are
void, and even existing laws must give way to the provisions
of a treaty."
SEC. 376. President's Military Powers.-The president is
the commander-in-chief of the army and navy of the United
States, and of the militia of the several states when they are
called into actual service, and in that capacity has all of the
powers of a military commander.
He may declare martial law. He may confiscate property
in the prosecution of a war. He may confiscate and cause to
be condemned and forfeited the property of belligerents and
enemies, subject to the constitution and the usages of nations.”
He has, however, no more right to declare martial law than
has any other military commander, and martial law cannot be
declared arbitrarily.” -
He has no power to appoint a military commission to try
persons not members of the militia, and all acts performed by
such officers under the command of the president are null and
void, subjecting them ordinarily to actions for damages; and
persons unlawfully restrained of their liberty may be released
on habeas corpus.*
SEC. 377. Amomalows Powers — Reconstruction.— An anom-
alous state of affairs was brought about in the United States
by the rebellion; and while it was the prevailing sentiment
that the existence of the state and the private law of the state
were not destroyed and abrogated, civil government was de-
stroyed and abdicated, excepting in so far as there was a defacto
government and execution of the laws."
President Johnson declared that state institutions were pros-
trated, and that they must be taken up and adapted to the
progress of events."
1 Foster v. Neilson, 3 Pet. 314; Ware
v. Hylton, 3 Dall. 372; ante, sec. 199.
2 Brown v. United States, 8 Cranch,
110; Conrad v. Waples, 96 U. S. 279.
3 These subjects have been suffi-
ciently noticed elsewhere.
4 Exparte Milligan, 4 Wall. 2; John-
son v. James, 44 Ill., 142.
5Texas v. White, 7 Wall. 700; White
v. Hart, 13 Wall. 646. See also The
Grapeshot, 9 Wall, 129,
6 “They were in an abnormal condi-
tion, without civil government, with-
out commercial connections, without
national or international relations,
and subject only to martial law. By
withdrawing their representatives
in congress, by renouncing the privi-
lege of representation, by Organizing
a separate government, and by levy-
ing war against the United States,
they destroy their state constitutions
§ 37S.] FEDERAL EXECUTIVE.
429
He directed his military governor of Georgia to recognize
the people of the state as having resumed the relations of loy-
alty to the Union, and recognized that it was his duty to assist
in the establishment, gradually, if necessary, but as quickly as
possible, of a government republican in form, and in the mean-
time to protect each and all persons against foreign or domes-
tic violence.
Under these powers the president acted in establishing new
governments, and, while arbitrary acts may have been per-
formed, they were the natural outgrowth of the necessity of
acting without the guide of an established rule or the light of
precedent. . * * -
It was held by the supreme court that the judiciary had no
power to restrain the president in the exercise of this power
over the conquered states."
It was also held that the courts had no power to hear and
determine allegations which involved the existence of a state
organization; that this was a political question to be deter-
mined by the president, or at least by other branches of the
government.” º
This was but an application of the doctrine thoroughly estab-
lished by the decision of the court upon the facts involved in
Rhode Island rebellion case.”
SEC. 378. President’s Power of Appointment and Removal.—
The president is invested with the power of appointment, which
includes the right to nominate, and, by and with the consent
of the Senate, to appoint ambassadors, foreign ministers, con-
suls, judges of the federal courts, and heads of departments;
in fact, a great majority of the officers of the government are
appointed, either directly by him or by other officers appointed
of the rebellion, therefore, the people
in respect to the vital principle which
connected their respective states
with the Union and secured their
federal relations; and nothing of
those constitutions was left of which
the United States were bound to
take notice. For four years they had
a de facto government, but it was
usurped and illegal. They chose the
tribunal of arms wherein to decide
whether or not it should be legalized,
and they were defeated. At the close
of the rebellious states were found,
as the president expresses it, “de-
prived of all civil government.’”
Report Joint Com, on Reconstruc-
tion, 1866, p. viii. t
1 State of Mississippi v. Johnson, 4
Wall. 475. -
2 State of Georgia v. Stanton, 6
"Wall. 50. -
8 Luther v. Borden, 7 How. 1.
430 FEDERAL EXECUTIVE. [$$ 379, 380.
by him." He has the power to fill vacancies caused by death,
removal or resignation; but it is doubtful whether he can fill
an office which has never had an incumbent.”
SEC. 379. Power of Removal.—The power of appointment
has by some been held to incidentally carry with it the power
to remove, and the distinction has not at all times been kept in
mind between the appointing power conferred upon the presi-
dent by the constitution in matters pertaining to the United
States, and the same power when applied to the District of
Columbia, or other territories to which the constitution does
not extend.
The decision of the case of Marbury v. Madison * involved
facts which pertained only to the District of Columbia, and
such remarks as the chief justice indulged in as to the right of
a person who had been appointed to hold an office created by
and for a term fixed by congress must be confined strictly to
a territory over which congress has complete control.
It is now firmly established that the president has the right
to remove from office all executive officers appointed by him.
whose term of office is not fixed either by the constitution or
by the law of congress creating the office. This would seem
to be a necessary and reasonable correlative of the president's
responsibility to the people for the conduct of the executive
branch.” -
SEC. 380. The President's Council — The Cabinet.— The coun-
cils of the king, as we have heretofore seen, were the great
parliament of the nation, which in executive session had the
customary jurisdiction to take up and discuss and deliberate
upon the great affairs of the nation. He had also his cabinet
or privy council.
In the United States the affairs of the executive are carried
out by assistants and what are known as the departments.
These include the department of state, the department of war,
the treasury, of justice, postoffice, navy, interior, and agricult-
ure.”
1 See Marbury v. Madison, 1 Cranch, 4 Parson v. United States, 167 U. S.
137. 324. See Modern Political Institu-
2See McCrary on Elections (4th tions, by Simeon E. Baldwin, p. 89.
ed.), § 364. 5 See Mo., K. & Tex. Ry. v. Haber,
81 Cranch, 137. 169 U. S. 613–22.
§§ 381, 382.] FEDERAL EXECUTIVE. 431
The heads of these departments, together with the attorney-
general, constitute what is called the president's cabinet. All
of these departments have been created by acts of congress.
Attached to and working under some one or other of these
departments are various commissions, the interstate commerce
commission and the commission of public improvements being
examples."
SEC. 381. Pardoning Power.— The president has full par-
doning power for all crimes and offenses committed against the
United States. Such a pardon relieves a party from all penal-
ties, and restores all rights forfeited under the act on account
of which the pardon is granted.”
A pardon may be absolute or conditional,” or it may be a
partial pardon in the way of a commutation of sentence.”
A pardon restores an offender who has forfeited his civil
rights to his original status, but it will not revest him with
property which has vested in others, nor entitle him to reclaim
the proceeds of property sold under confiscation.” -
SEC. 382. Civil Liability of the President.—An impression
prevails that the president of the United States is not amenable
to the courts by civil suits for acts performed by him profess-
edly in his official capacity, even though they are beyond his
jurisdiction and constitute an unlawful interference with per-
sonal liberty or private property; but it is apprehended this
1 The powers delegated by congress
to these heads of departments are
frequently of great importance, e. g.
postmaster-general. It has been held
that the postmaster-general may be
authorized to direct a postmaster to
refuse the delivery of mail matter
because of its improper character, or
its being engaged in prohibited busi-
ness, such as lotteries, or used as a
means to defraud, and the decisions
of the postmaster-general, in the ab-
sence of fraud or malice, cannot be
reviewed by the state or federal ju-
diciary. Enterprise Sav. Ass’n v.
Zumstein, 67 Fed. Rep. 1000.
As we have seen, however, in com-
lmenting upon the interstate com-
merce commission, the decision of
these departments is not generally
conclusive of the rights of persons
in regard to property and personal
rights. A familiar example is the
right to test the validity of a patent
granted by the commissioner of pat-
ents, as an agency of the interior de-
partment. Neither is a patent to
land in all cases conclusive, and in
that regard it has been held that a
decision of one secretary of the in-
terior may, on application for rehear-
ing, be revised and reversed by a
subsequent Secretary. Beley v. Naph-
taly, 18 Sup. Ct. Rep. 354.
2 Carlisle v. United States, 16 Wall.
147; Lapeyre v. United States, 17.
Wall. 191; Armstrong's Case, 6 Wall.
766.
3 Ex parte Wells, 18 How. 307.
4 Id.
5 Ex parte Garland, 4 Wall. 333;
FCnote v. United States, 95 U. S. 149.
432 FEDERAL EXECUTIVE. [š 382.
impression fails to distinguish between the performance of his
political duties, which result in loss and damage to private in-
dividuals, and direct cases of the invasion of private property
or personal liberty."
In 1808 Thomas Jefferson was sued by Edward Livingston
for an alleged trespass to real property committed in the ter-
ritory of Orleans, in the city of New Orleans. The action was
brought at the city of Richmond, in the county of Henrico,
Virginia.
The case was disposed of by Marshall as circuit justice, and
Tyler, the father of President Tyler, as district judge.
No question was made as to the jurisdiction of the court to
entertain such a suit, but the territorial jurisdiction of the court
was denied because the action was a local one and could only
be entertained in the jurisdiction wherein the land lay.”
1 Mechem, Public Officers, sec. 607.
The question as to the liability of
the president directly for acts di-
rectly committed by himself or com-
mitted under his direct and specific
orders must in the nature of the case
arise very infrequently. In the case
Qf Mississippi v. Johnson the question.
arose in reference to a political mat-
ter clearly within the executive de-
partment. The court there said:
“We shall limit our inquiry to the
question presented by the objection,
without expressing any opinion. On
the broader issues discussed in argu-
ment, whether, in any case, the pres-
ident of the United States may be
required, by the process of this court,
to perform a purely ministerial act
under a positive law, or may be held
amenable, in any case, otherwise
than by impeachment for crime.
“A ministerial duty, the perform-
ance of which may, in proper cases,
be required of the head of a depart-
ment by judicial process, is one in
respect to which nothing is left to
discretion. It is a simple, definite
duty, arising under conditions ad-
mitted or proved to exist, and im-
posed by law.
“The case of Marbury v. Madison,
Secretary of State (1 Cr. 137), fur-
nishes an illustration. A citizen had
been nominated, confirmed, and ap-
pointed a justice of the peace for the
District of Columbia, and his com-
mission had been made Out, signed
and sealed. Nothing remained to be
done except delivery, and the duty
of delivery was imposed by law on
the secretary of state. It was held
that the performance of this duty
might be enforced by mandamus is-
suing from a court having jurisdic-
tion.
“So, in the case of Kendall, Post-
master-General, v. Stockton & Stokes
(12 Pet. 527), an act of congress had
directed the postmaster-general to
credit Stockton & Stokes with such
sums as the solicitor of the treasury
should find due to them; and that
officer refused to credit them with
certain sums so found due. It was
held that the crediting of this money
was a mere ministerial duty, the per-
formance of which might be judi-
cially enforced” by mandamus. State
of Mississippi v. Johnson, 4 Wall. 475,
498–99.
2 Livingston v. Jefferson, 1 Brock.
203; 15 Fed. Cas, 660.
§ 383.] FEDERAL EXECUTIVE. 433
In the case of Marbury v. Madison, Justice Marshall, speak-
ing of the accountability of the president for his official and
political action, uses the language so often made the basis of
the opinion that the president is not liable to be called to an
account in the courts for acts done as president;” but that lan-
guage does not apply to his liability for a direct invasion of the
civil and property rights of an individual.
Upon that question the opinion of the chief justice seems to
be explicit. He there says: “The very essence of civil liberty
certainly consists in the right of every individual to claim the
protection of the laws whenever he receives an injury. One
of the first duties of government is to afford that protection.
In Great Britain the king himself is sued in the respectfulform
of a petition, and he never fails to comply with the judgment
Of his court.” ”
He continues: “The government of the United States has
been emphatically termed a government of laws and not of
men. It will certainly cease to deserve this high appellation
if the laws furnish no remedy for the violation of a vested
legal right.”*
SEC. 383. Subordinate Officers.--It seems apparent that if
the president was above the law, those who acted under his
direct personal order were equally so, and might justify under
that order; but individuals authorized by the president under
his supposed right as military commander have been held re-
sponsible in an action of trespass for unlawful imprisonment of
the citizen. -
There seems no reason why, for any action in which the
president directly participates or which is committed under
his direct Order, he may not be held liable in an appropriate
civil action in the ordinary courts.”
11 Cranch, 137.
2 Id. 170.
3 Id. 163.
4 Marbury v. Madison, 1 Cranch,
135–163.
5 Johnson v. Jones, 44 Ill. 142. In
this case the attempt was made
to justify under the direct order of
the president. The court held that
the executive order under which the
defendant attempted to justify was
illegal and void; and it was held in
the same case that Congress Could
not, by subsequent legislation, legal-
ize the act or take away the right
to sue for it. The writer knows of
no other similar case. There is no
reasoning which can Constitute a
void act, even of the president of the
TJnited States, a protection to him
for the consequences directly flowing
from that act.
28
434 FEDERAL EXECUTIVE. [$ 383.
The liability of department officers and subordinate executive
officers to actions for injury to private right is fully settled."
A case involving in some degree the question of justification
under martial law arose in the supreme court of the United
States in 1851. During the war with Mexico, Colonel Mitchell,
acting under the orders of Colonel Doniphan, had seized the
private property of Harmony, for the service of the expedition.
commanded by the latter officer. Harmony, who had been
following the march of the army as a trader, after arriving in
the Mexican province of Chihuahua, desired to stop there, but
was compelled by the commander to accompany the expedition
with his wagons, mules and goods. The property was event-
ually lost, and an action was brought against Colonel Mitchell
to recover its value. The defendant urged that it was seized
and impressed into the public service from necessity, also to
prevent it from falling into the hands of the enemy. The
court held the plaintiff entitled to recover.”
The distinction must always be ob-
served between an act arbitrarily
performed within a power actually
eacisting and one beyond the power
to perform; for example, a military
officer or the president may exercise
a discretion arbitrarily to order the
military officer to interfere for the
purpose of protecting private prop-
erty at home or abroad.
The functions exercised are pecul-
iarly executive, and the courts can-
not afford any remedy because the
matter is damnum absºwe injuria,
(Durand v. Hollins, 4 Blatch. C. C.
451, 8 Fed. Rep. 111); but a military
Order does not justify an act per-
formed beyond the military power.
1 Tracy v. Swartwout, 10 Pet. 80;
Little v. Barreme, 2 Cranch, 170;
Wise v. Withers, 3 Cranch, 331; El-
liott v. Swartwout, 10 Pet. 137. In
the latter case the right of action is
discussed. It was held in that case
that if money is unlawfully collected
without protest, the money cannot
be recovered from the collector after
he has paid it over.
2 Mitchell v. Harmony, 13 How. 134,
The case of Smith v. Shaw, 1 Cow.
429, decided by the very able bench
that constituted the supreme court
of the state of New York in 1815, was
a suit brought by a citizen against
an army officer for false imprison-
ment during the war of 1812. The
defense set up was that the plaintiff
was a spy. The court said: “If he
was an American citizen he could
not be charged with such an offense.
He might be amenable to the civik
authority for treason, but could not
be punished under martial law as a.
spy.” The plaintiff recovered. Cited
in Johnson v. Jones et al.; 44 Ill. 142–
159.
CHAPTER XXII.
STATE LEGISLATIVE DEPARTMENT.
SEC. 384. Unity and Dependence of State and Federal Sys-
tems.-The student of American constitutions, or the lawyer
Who undertakes to apply the principles of American law, must
obtain a clear grasp of the system of American law as a whole.
This system of law is one wherein each of the members per-
forms a given function; each has a distinct department and
Orbit of Service, but after all each branch or member artic-
ulates upon another. The joining of this whole constitutes
the body of American law, and the combined will of the whole
people constitutes the soul and spirit of the national law, as
the will of the people of the state does that of the smaller
locality.
“Organization,” says Amos, “implies a relation of the parts
of each constituent group or component element of the com-
munity with every other group, and with the whole as an in-
tegral body. This relation is of such a nature that each group
contributes to the efficiency of every other group and of the
whole, and the whole, strengthened by such general contribu-
tion, increases the efficiency of every separate group.”
SEC. 385. Inherent Limitations on Legislative Power—
When considering the attributes of state legislatures, their po-
sition in this great body and system of jurisprudence as a sub-
ordinate instrument and not as a creating constituent element
must be kept in mind.
The early tendency of encroachment by the states and the
1 Amos, Science of Law, 122. The
learned author adds: “Government
implies the conscious Superintend-
ence of the fortunes of the commu-
nity, both present and future, and
involves the manipulation of the
physical strength latent in all parts
of the community, for the purpose
both of controlling recalcitrant mem-
bers of the community and of pro-
tecting the community from assail-
ants from without. The main instru-
mentality by which government
operates is law or bodies of general
rules declaring the acts which mem-
bers of the community are to do and
not to do in order to facilitate the
accomplishment of the general pur-
poses for which the government ex-
ists.”
436 STATE LEGISLATIVE DEPARTMENT.
[$ 385.
assertion of a doctrine of legislative sovereignty and omnipo-
tence tended for a time to obscure the true view which was
earlier declared and established, and which is again asserting
itself."
The early opinions were clear and explicit that state legis-
latures did not possess the omnipotence and all the legislative
attributes which were claimed as a possession of the British
parliament, if such claim is measured by the exposition of the
great commentator on English law.
Mr. Pinckney, arguing the case of MeCulloch v. State of
Maryland,” says: “The authority of the legislature in state
government is not unlimited. There are several limitations to
their legislative authority. First, from the nature of all gov-
ernment, especially of republican government, in which the
residuary powers of sovereignty, not granted specifically, by in-
evitable implication are reserved to the people. Secondly,
from the express limitations contained in the state constitu-
tions.
And thirdly, from the express prohibitions to the states
contained in the United States constitution.”
The British constitution knew no such a thing as a division
1 For example, the language of
the chief justice in Thorp v. Rutland
& B. R. R. Co., 27 Vt. 140, is typical
of a view found expressed in similar
language, but finding no sanction in
its broadest sense from the decisions
of the United States supreme Court,
and is contrary to many well-consid-
ered opinions of state judges. Judge
Redfield says: “It has never been
questioned, so far as I know, that the
American legislatures have the same
unlimited power in regard to legisla-
tion which resides in the British par-
liament, except where they are re-
strained by written Constitutions.
That must be conceded, I think, to
be a fundamental principle in the
political organization of the Ameri-
can states. We cannot well compre-
hend how, upon principle, it should
be otherwise. The people must, of
course, possess all legislative power
originally. They have committed
this in the most general and unlim-
ited manner to the several state leg-
islatures, saving only such restric-
tions as are imposed by the constitu-
tion of the United States or of the
particular state in question. I am
not aware that the constitution of
this state contains any restriction
upon the legislature in regard to cor-
porations, unless it be that, where
“any person’s property is taken for
the use of the public, the owner ought
to receive an equivalent in money; ”
or that there is any such restriction
in the United States constitution, ex-
cept that prohibiting the states from
‘passing any law impairing the obli-
gation of contracts.’” Compare with
this, People v. Draper, 15 N.Y. 532, and
pp. 105–7, Cooley's Const. Lim. (6th
ed.); People v. Albertson, 55 N. Y., at
pp. 55–66.
24. Wheat. 316.
§ 385.] STATE LEGISLATIVE DEPARTMENT. 437.
of the exercise of legislation between parliament and the peo-
ple. They knew no such thing as a constitutional convention.
Political legislation—that is, legislation by which the consti-
tution of the state is changed—must emanate from the people.
This results from the establishment of a republican form of
government. > g
Judge Cooley quotes without dissent the opinion of Chief
Justice Denio, that to the state legislatures is committed the
whole law-making power which the people did not expressly
or impliedly withhold. The frame of the government, the
grant of legislative power itself, the Organization of the exec-
utive authority, the erection of the principal courts of justice,
create implied limitations upon the law-making authority, as
strong as though a negative were expressed in each instance."
And the same great jurist himself announced the salutary
principle that, although no express prohibition can be found,
he entertained no doubt that, should state legislatures under-
take to abolish the whole system of local self-government, it
would be the duty of the judiciary to hold the act void.”
The case of Wilkinson v. Zeland” was a case arising under
the law of Rhode Island, which had no written constitution
other than the principles and usages which had been observed
from time immemorial, and which might be said to include the
British constitution, but certainly nothing stronger than the
limitations imposed upon the British parliament.
Mr. Webster argued that it was of no importance whether
there were any restrictions to the power of the legislature im-
posed by the constitution; for if at this period there was not
a general restraint on legislative power, there was an end to
private property. He insisted that without prohibitions in the
constitution the legislature were restrained from committing
flagrant acts—acts subverting the great principles of repub-
lican liberty and of the Social compact.
Mr. Justice Story, delivering the opinion, held that even if
an absolute authority could be ascribed under the English con-
stitution and that of Rhode Island before the revolution, it
I Cooley's Const. Lim. (6th ed.), 105. Mich. 44. See also People v. Albert-
See People v. Draper, 15 N. Y. 532. Son, 55 N. Y. 55.
2 Regents v. Williams, 9 Gill & 32 Pet. 654,
Johns, 365; People v. Hurlbut, 24
4.38 STATE LEGISLATIVE DEPARTMENT.
[$ 386.
could scarcely be imagined that that great event could have
left the people of that state subject to its uncontrolled and
arbitrary exercise; and also, that as to the absolute power of
legislation, it could not be imagined that it lurked under any
general grant of legislative authority. The people ought not
to be presumed to part with rights so vital to their security
and well-being without very strong and direct expressions of
intention."
SEC. 386. State Legislature is Not Limited to Subjects Ea:-
cept by Eaſpress Words.--While the extent of the power of the
legislature is clearly limited by general principles of repub-
lican government, irrespective of express prohibitions, there is
no limitation or enumeration of the subjects of state legisla-
tion; but all proper subjects of legislation may be exercised by
this agency of the people. *
The State Constitutions Are Woff Enumerations of Subjects.-
A proposition universally acceded to is that the state constitu-
tion is not a grant of power to the legislative department.
This statement of the proposition involves a misleading im-
plication. If regarded in connection and contrasted with the
United States constitution, the proposition states a principle
distinguishing between the nature of the different instruments,
namely, that the federal constitution is a grant of power over
enumerated objects, while the state constitution does not at-
tempt to enumerate the objects of state legislation; but, as we
have seen, the state legislature is not a creative body having
Original sovereignty, but exists, when regarded from the stand-
point of a question between an individual of a state or of the
people of the state, by the grant to this designated body of
the legislative power; and this grant is the only warrant or
authority which the legislature has for performing legislative
acts.
The practical point to be observed by the student and jurist
1 See Smith's Com. on Const. Law,
pp. 283–84. Other cases have been
equally explicit. In Terrett v. Tay-
lor, 9 Cranch, 43, an act of the legis-
lature was held void as against com-
mon right, although in fact the
circumstances of the case anticipated
the Dartmouth College case, and it
was claimed by Webster that this
case left nothing to argue. In Bona-
parte v. Camden & A. R. R. Co., Mr.
Justice Baldwin held that, aside from
any express prohibition, the state leg-
islature could not take private prop-
erty for private purposes. 1 Bald.
C. C. 223.
§ 387.] STATE LEGISLATIVE DEPARTMENT.
439
-
is not to allow the general expression to convey the conclusion
that there rests in the legislature of the state any such supreme
and absolute authority as was claimed for the British parlia-
ment by parliament itself and by the most ardent advocates of
its extreme omnipotence."
SEC. 387. Organization of the Legislature.—Assemblages of
individuals can exercise the legislature power of a state only
when they are created and established by the constitution and
organized in accordance there with.”
All of the state constitutions have in them a provision in
substance that the legislative power shall be vested in a gen-
eral assembly consisting of a Senate and house of representa-
tives. -
These legislative bodies are not the creators, but the creatures
of the constitution. They are not the sovereign, but the trustees
Or agents of the sovereignty.
As is well said by Chief Justice Story: “The legislature of
Massachusetts is, as I have already said, in no just sense the
sovereign of the state. The sovereignty belongs to the people
of the state in their original character as an independent com-
munity, and the legislature possess those attributes of sover-
eignty, and those only, which have been delegated to it by the
people of the state, under its constitution.”*
1 * The legislature possesses no in-
herent power of making laws; and
no powers but such as are derived
from the constitution, subject to its
Timitations and restrictions; the lead-
ing one being that it shall make no
Iaw contrary to the constitution. Be-
yond this, it no more represents the
Sovereignty of the people than either
of the other branches of government
does; and when it assumes to pass an
act contrary to the constitution, it is
not a legislative act, and cannot
have the force of law. Charles River
Bridge v. Warren Bridge, 11 Pet. 644.”
Bailey v. P. W. & B. R. R. Co., 4
Harr. (Del.) 389; 44 Am. Dec. 593–
604; Taylor v. Porter, 4 Hill, 140; 25
Am. Dec. 155; Regents v. Williams,
9 Gill & J. 365; 31 Am. Dec. 72; Peo-
ple v. Hurlbut, 24 Mich. 44; ante,
ch. XII; post, p. 442, note 3.
2 State v. Cunningham, 81 Wis. 482.
8 Charles River Bridge v. Warren
Bridge, 11 Pet. 644. In some early
Constitutions the grant to the legis-
lature or general court was broad
and indefinite, but even these were
limited by the nature of the grant.
“As to the thirty-first article of the
bill of rights, it merely provides that
‘the legislature shall assemble for the
redress of public grievances, and for
making such laws as the public good
will require.” Yet ‘the grievance’
attempted to be redressed by the act
under consideration was not a ‘pub-
lic' one; and if it were the obvious
meaning of the article is, that such
grievance should be redressed by
440 STATE LEGISLATIVE DEPARTMENT. [š 388.
If the body which assembles and assumes to act has not been
created according to the constitution, it is a usurping body and
cannot rightfully exercise the powers of legislation;' and in
such case it belongs to the judicial branch to protect the sov-
ereignty of the people and the rights of individuals which may
be affected thereby. ..
Many instances have occurred where legislatures, dominated
by a faction, have undertaken to perpetuate their power by
apportioning the state in such a manner as to give an advan-
tage to parties holding a particular political view, disregarding
the principles upon which representation in that body is obvi-
ously intended—that is, representation by counties or town-
ships; and in such cases the courts have exercised the jurisdic-
tion to interfere to preserve the rights of sovereignty in the
people at large and the liberties of the individuals.”
SEC. 388. Basis of Representation.—The principles of repre-
sentation do not differ very materially in the different states.
In some of the states the unit of representation is the town, in
‘laws,” and not by proceedings usurped powers, franchises and pre-
which aré in their nature judgments.
The constitution afterwards confers
upon the legislature only legislative
power, for the purpose of effecting
that ‘redress.’” Merrill v. Sherburne,
1 N. H. 199; 8 Am. Dec. 59 (1818).
1 In many cases acts of a de facto
legislature might be binding.
2 State v. Cunningham, 81 Wis. 502.
In this case the court says: “One of
the first cases of this kind brought
in this court was Attorney-General
v. Blossom, in quo warranto (1 Wis.
317), in which the court said: ‘Con-
tingencies might arise wherein the
prerogatives and franchises of the
state in its sovereign character might
require the interposition of the high-
est judicial tribunalto preserve them.
Other departments might need its
intervention. Indeed, various emer-
gencies Inay have been conceived in
which this branch of the govern-
ment, and this arm of the judiciary
alone, might be adequate to preserve
the balance of powers, to arrest
rogatives, to quell resistance to con-
stitutional authority, to preserve the
liberty of the individual citizen, and
shield the sovereignty of the state
itself from violation.” These broad
grounds of the court's original ju-
risdiction in matters publici juris
would seem to embrace every possible
matter of great public interest. . . .
We may be permitted to make an
extended extract from the opinion
in Houston v. Moore, 5 Wheat. 1, be-
cause it fully expresses, once for all,
the jurisdiction of this court: “By a
course of judicial decisions reaching
from the earliest history of Ameri-
can government to the present day,
without a dissenting voice, it has
been adjudged that courts of justice
have the right and are in duty bound
to test every law by the constitution
as the fundamental and paramount;
law of the land, governing all deriva-
tive power and the exercise thereof.’”
State v. Cunningham, 81 Wis. 440,
472, 478.
§ 388.] STATE LEGISLATIVE DEPARTMENT. 441
others the county, and in still others the representation is based
upon the apportionment of numbers in contiguous territory."
These will be noticed in connection with the subject of local
self-government. -
It will be sufficient here to direct attention to a few of the
decisions from which the reasons for this contrariety of view
may be gathered. - . -
Township Organization.— In Massachusetts and Connecticut
the first organization was entirely local, and it was only after
the towns sent representatives to a general court that there
existed any state legislature;” and the same may be said of most
of the New England states. In these localities the county was
not taken into consideration as a local division in the scheme
of legislative representation; * but even in New England and the
eastern states there is some diversity of opinion as to whether
the locality of the town is the unit," or whether the policy of
the state was formerly to apportion the representation among
the inhabitants according to numerical ratio.”
Wherever the latter view is allowed to prevail it opens the
door for that obnoxious form of legislative tinkering which
passes under the familiar name of “gerrymandering ” a state."
County Organization.—The scheme of organization which
contrasts with the town organization passes under the name of
county organization and prevailed in the southern portion of
1 The apportionment for congres-
sional representation in the house
may be adjusted upon such principle
as the state may adopt. It is not
to be understood that the members
when elected represent the locality
only, and may be instructed by it.
There is no practical way to instruct
representatives, and no binding force
on such instructions, and Such a prac-
tice has not been Sanctioned. See
1 Swift's System of Law, 35.
2 Swift's System of Laws of Conn.,
pp. 151–52. See Webster v. Township
of Harwinton, 32 Conn. 131; Pro-
prietors v. Kendrick, Smith’s N. H.
270.
3 Hampton v. Franklin, 16 Mass.
87; Story's Misc. Writings, 516.
4 People v. Rice, 135 N. Y. 473–498.
5 Baird v. Supervisors, 138 N. Y. 95.
6 State v. Cunningham, 81 Wis. 440;
Beople v. Supervisors, 147 N. Y. 1;
Supervisors v. State, 92 Mich. 638.
|Mr. Foster, in his Constitutional Law
(vol. 1, 398, n. 6), shows us the an-
cient, if not venerable, origin of the
name and practice, stating that “it
was so named because the Essex sen-
atorial district was so irregularly
shaped as to resemble a Salamander;
and Elbridge Gerry was the governor
who signed the bill.” Citing The
Political Depravity of the Fathers,
by John Bach McMaster, Atlantic
Monthly, vol. lxxv, p. 631. Here
again only the judiciary can save
the people.
442 STATE LEGISLATIVE DEPARTMENT. [$ 389.
**** *
the colonies, and for that reason more generally prevails in
those states constructed out of territory ceded by Virginia and
other southern states."
Whatever the difference in these fundamental schemes of
local self government and city and village organization, it is
safe now to assert that the control of the legislature does not
extend any further than to regulate and not to wipe out and
abolish. -
SEC. 389. The Legislature Must be Regularly Organized.—
The members of the state legislature, although they are duly
chosen by the people, cannot meet at such time, and in such
place and manner, as the whim of a majority of the members
may direct. º
They are not collectively sovereigns exercising original au-
thority, but are strictly trustees or agents exercising a dele-
gated authority; and they can perform no acts unless they
are performed at the time and in the manner specified by their
power of attorney—the constitution.” .
Whether the constitution is called a grant of power or a lim-
itation upon power matters very little, but in substance it is a
document which delegates the exercise of legislative power,
and prescribes the manner and extent of state legislation.”
1 Cooley, J., in People v. Hurlbut,
25 Mich. 44; State v. Cunningham,
81 Wis. 457, 478, 525.
2 Patterson, J., says: “What is a
constitution ? It is the form of gov-
ernment delineated by the mighty
Thand of the people. What are leg-
islatures? Creatures, of the consti-
tution; they owe their existence to
the constitution; they derive their
powers from the constitution; it is
their commission; and therefore all
their acts must be conformable to it
or else they will be void. The con-
stitution is the work of the people
themselves in their Original, SOver-
eign and unlimited capacity. Law
is the work or will of the legislature
in their derivative and subordinate
capacity. The one is the work of
the creator and the other of the
creature. The constitution fixes lim-
its to the exercise of legislative au-
thority, and prescribes the orbit
within which it must move. In
short, gentlemen, the constitution
is the sun of the political system,
around which all legislative, execu-
tive and judicial bodies must re-
volve.” Van Horne v. Dorrance, 2
Dall. 304–308.
3 The supreme court of Illinois,
speaking of criticism upon the rule
that a method prescribed excludes a
resort to other methods, said: “The
decisions are also criticised by coun-
sel for defendant under the rule that
what is expressed is exclusive only
where it is creative, and that the
maxim applies only to a provision
which grants originally a power, but
does not limit or destroy a pre-exist-
ing right. It is contended that the
power to apportion does not originate
§ 390.] STATE LEGISLATIVE DEPARTMENT. 443
The regular organization of the state legislature is accom-
plished by meeting at the time and place fixed by the consti-
tution and choosing the officers who are designated in that
instrument as the necessary presiding and ministerial officers.
Ordinarily speaking, a quorum is necessary for the purpose of
organization, but a less number may meet at the time and place
and adjourn, and ordinarily, issue notices and requisitions for
absent members. When this quorum has met and organized,
business may be transacted under ordinary circumstances by a
majority vote of this quorum."
SEC. 390. Legislatures Must Observe Prescribed Forms of
Procedure.—The legislative body, when assembled and duly
Organized, must conform to the requirements of the constitution
in reference to the manner of the enactment of laws” and the
mode of evidencing their proper enactment.
with the provisions of the constitu-
tion, but is a pre-existing right inde-
pendent of the provision, and that
therefore the rule is not to be applied.
To this we cannot assent. The legis-
lature is the creature of the consti-
tution, and the provisions in respect
to the two houses, the division of the
state into senatorial districts by a
particular plan, and the membership
of each of the houses, are creative in
their nature. They relate to the
framework, the membership and the
Organization of the legislative depart-
ment of the government created by
the constitution for the exercise of
legislative powers. They prescribe
the manner in which districts shall
be created, that a senator and three
representatives shall be elected in
each district, and provide for the
constitution and organization of the
department which shall exercise leg-
islative power.” People v. Hutchin-
Son, 172 Ill. 486—500. -
1 State v. Ellington, 23 S. E. Rep.
250; United States v. Ballin, 144 U. S.
1. See also an article in 42 Cent.
Law Jour., p. 25.
*In an Illinois case involving the
validity of municipal bonds issued in
supposed accordance with a law of
the state, and held by an alleged in-
nocent purchaser, the court say: “In
this case the only power or authority
in law justifying the issuing of the
bonds is the act of 18th of February,
1857, which we have seen was not read
on three different days, nor was it
passed by a vote of the ayes and noes
in the senate. Article 3, section 21,
Constitution of 1848, requires that “on
the final passage of all bills the vote
shall be by ayes and noes, and shall
be entered on the journal; and no
bill shall become a law without the
concurrence of a majority of all the
members-elect in each house.’ And
the twenty-third section of the same
article requires that “every bill shall
be read on three different days in
each house, unless, in Case of emer-
gency, three-fourths of the house
where such bill is so pending shall
deem it expedient to dispense with
this rule.” The bill, therefore, never
became a law, and the act conferred
no power or authority whatever to
issue the bonds. It was as completely
a nullity as if it had been the act or
declaration of an unauthorized assem-
blage of individuals. Spangler v. Ja-
444 STATE LEGISLATIVE DEPARTMENT.
[$ 390.
Notwithstanding the jealousy which seems to exist toward
the judicial and executive departments of the state, the legis-
lative department is the one which should be the most closely
watched and hedged about by the greatest constitutional Safe-
guards. -
The liberties of the people have been preserved by the courts
and have been protected by the executive, but the history of
American state legislation is a disgraceful history of the bar-
tering away of the people’s rights by venal and senile legisla-
tion. - -
Perpetual franchises, practical monopolies and liberal gifts
of other people's money have been the practice of American
legislative assemblies, until the people have been loaded with
bonded indebtedness and the common people goaded to des-
peration at the unequal conditions brought about entirely by
legislative manipulation. The opinion is growing that we are
burdened with too much legislation."
coby, 14 Ill. 298: People, etc. v. Starne,
35 Ill. 121.” Ryan v. Lynch, 68 Ill.
160, 165.
1 The Hon. W. L. Hornblower of
New York says: “A well-ordered,
well-reasoned, symmetrical, logical
and just jurisprudence is a boon; as
a distorted, confused, inconsistent,
arbitrary jurisprudence is a curse to
any community. It is not the law-
yer but the layman who suffers from
confusion and uncertainty in the law.
The more confusion and uncertainty,
the more litigation and the greater
the lawyer's emoluments.
“Much criticism has been heaped
by theorists upon the system of judge-
made law. Sarcasm and logic have
been brought to bear upon it to show
its apparent absurdity. . . .
“Yet even that arch enemy of the
common-law system and advocate of
statutory law, Bentham, whose caus-
tic pen revels in savage epithets of
denunciation of “unwritten’ or com-
mon law, which he designates by the
terrible word impostrous, whose per-
petual fruits he declares are “uncer-
tainty, uncognoscibility, particular
appointments without end, and gen-
eral sense of insecurity,”—even he is
forced in a moment of frankness to
admit, “Traverse the whole continent
of Europe, ransack all the libraries
belonging to the jurisprudential sys-
tems of the several political states,
add the contents all together, you.
would not be able to compose a col-
lection of cases equal in variety, in
amplitudo, in clearness of state-
ment—in a word, all points taken
together, in instructiveness—to that
which may be seen to be afforded by
the collection of English reports of
adjudged cases, on adding to them
the abridgments and treatises, by
which a sort of order, such as it is, has
been given to their contents.” .
“So it has come about that, in spite
Of logic and sarcasm, the great bulk
of the Anglo-American race still ad-
here to their system of so-called “un-
written or judge-made law, rather
than have our laws formulated for
us by the legislature. Of course the
legislature does exercise its law-mak-
§ 390.] STATE LEGISLATIVE DEPARTMENT. 445
The constitutional directions to the state legislatures are not
merely directory—they are commands; and it is not allowable
to apply the distinction sometimes made between statutes, that
some are directory and some mandatory. These constitutional
enactments, the requirements of the constitution, are always
mandatory and must be obeyed." -
Whenever a question arises as to the existence of a statute or
the time when it took effect, or the terms of the statute, the
court called upon to decide has, in the absence of specific direc-
tion, the right to avail itself of any information which in its
nature is capable of conveying to the judicial mind a clear and
satisfactory solution of such question; always seeking first that
which is best and most appropriate evidence, and following the
pursuit according to the rules of evidence, unless the positive
law has established some prohibitory rule. -
The people, by the constitution, may prescribe what shall be
conclusive or prima facie evidence of the existence or non-
existence of a statute; but the legislature cannot, by its own
declaration, control the court in examining and weighing the
evidence of the due and regular passage of laws.” -
The constitutions of most of the states require that each
house must keep a journal of its proceedings and preserve the
same, and that there shall be enrolled the yeas and nays, and
other provisions tending to fix the responsibility for votes. An
act not passed in accordance there with is not a law; and it is a
well-established rule that evidence of the contents of these
journals may be admitted, and these being the best evidence,
must, in the first instance, be produced before another grade
of evidence can be heard.”
ing powers from time to time, but
generally in a way to make us thank-
ful that it does not exercise these pow-
ers more frequently. On the whole,
we are well satisfied with our judge-
made laws, because our courts pass
upon questions presented to them,
and lay down the rules of law appli-
cable thereto, after full discussion by
counsel, after opportunity for care-
ful, patient and calm examination
and consideration by the courts. On
the other hand, law-making by the
legislature means too frequently a
Careless, perfunctory examination of
a proposed bill by a committee, and
a passing of the bill without any un-
derstanding of its contents. The more
important and far reaching it may
be, the more it affects the general
jurisprudence of the state, the less
interest does it command.”
1 State v. Cunningham, 81 Wis. 510.
? In re Duncan, 139 U.S. 449; Santa
Clara Co. v. So. Pac. Ry. Co., 18 Fed.
Rep. 385–427. -
*Id.; Gardner v. Collector, 6 Wall.
499.
446 STATE LEGISLATIVE DEPARTMENT. [$ 391.
These requirements as to form and method of procedure are
likewise binding upon the people, and an act of the legislature
which is made the basis of a constitutional amendment, sub-
mitted to the people and admittedly receiving a large majority
vote, is nevertheless null and Void and no amendment, unless it
has been passed in conformity with the requirements of the con-
stitution."
Majority.—In public legislative assemblages it is generally
sufficient, in the absence of contrary direction, that a majority
of any designated quorum may transact business and enact laws,
and it is frequently required that in some species of legislation
a division of the house shall, or may, be required.” By this is
meant, in modern times, that the yeas and nays shall be called
and enrolled.
Eormerly it is said that in such cases those voting in the
affirmative divided themselves from the balance of the house
by actual removal, but in modern times the division is affected
by the calling of the roll. In such cases, although the journal
of the house should show that there was a quorum of the house
present, it is essential that the roll-call show that there were
voting upon the proposition, One way or the other, a quorum of
the legislative assembly.”
SEC. 391. General Legislative Power Cannot be Delegated.—
The legislative power and duty which is devolved upon the
1 Koehler v. Iowa, 60 Iowa, 543;
Trustees v. MacIver, 72 N. C. 76. See
Cooley, Const. Lim. (6th ed.) 43.
Joint resolutions of the two houses
are laws. Cush. Leg. Assb., Sec. 2403;
Swan v. Buck, 40 Miss. 493; State v.
Bailey, 16 Ind. 46; 79 Am. Dec. 405.
2 United States v. Ballin, 114 U. S. 1.
3 State v. Ellington, 117 N. C. 158.
The court says: “We think it is
undoubtedly true that the quorum
will be presumed until it shall ap-
pear there is not one. Cush. Elect.
(2d ed.) 369. This is usually made to
demands a division—a call of the
body. Id., sec. 1798. And, strictly
speaking, this is what is called a “ di-
vision.” Cush. Parl. Law, sec. 1814.
This brings us to the consideration
of what is a quorum. They are of
two kinds,-- One fixed by the consti-
tution or power creating the body
or assembly. In this way a major-
ity of a majority may constitute a
Quorum and do business. But, where
the quorum is not fixed by the con-
stitution or the power that creates
the body, the general rule is that a.
appear by what is called a division;
and this is usually had after a vote
by yeas and nays, when the presid-
ing officer announces the vote and
Some opposing member doubts the
correctness of the announcement and
Quorum is a majority of all the mem-
bers (Cotton Mills v. Commissioners,
108 N. C. 678; Cush. Elect., Sec. 247;
TJnited States v. Ballin, supra), and
a majority of this majority may leg-
islate and do the work of the whole.”
§ 392.] STATE LEGISLATIVE DEPARTMENT. 447
legislative department by the constitution cannot be evaded or
transferred to any other department or recommitted to the peo-
ple at large. General laws which affect the whole state and
all the inhabitants thereof, or all such as naturally fall within
its provisions, must emanate from the legislative department.
Not only is this true, but the legislature have no power to con-
fer what is now spoken of as the referendum; that is, they
have no power to devise and fix the terms and provisions of an
act, and then make the question whether such an act shall be-
come a law, or not, depend upon the people at large. This is
among the well settled propositions, admitting of no exception."
It is not, however, to be understood that all legislation which
the general assembly has a right to enact must be enacted by it.
So Chief Justice Marshall says it will not be contended that
Congress can delegate to the courts, or to any other tribunals,
powers which are strictly and exclusively legislative. But
congress may certainly delegate to others powers which the
legislature may rightfully exercise itself, and he instances the
delegation to the judiciary department of the fixing of the rules
of practice and process of the various courts.”
SEG. 392. Local Government May be Provided for and Reg-
wlated.— Our whole system of law is based upon the proposi-
tion that, to as large an extent as practicable, local regulations
shall be committed to local authority; and before our consti-
tutions existed, the system of local organization was prevalent
in America, and in fact had existed in the mother country
from time immemorial.
The town meeting antedates the general court, and the
county system is coeval with, if not older than, any general
assembly having general powers of legislation; and to such
assemblages as township commissioners, county commissioners,
or supervisors, village boards and city councils, the power of
local legislation has been universally committed, and the au-
thority is not to be doubted.”
Not only may this general power of local self-government
1 Barto v. Himrod, 8 N. Y. 483; 2 Wayman v. Southard, 10 Wheat.
Clark v. City of Rochester, 28 N. Y. 1–42; Bank of U. S. v. Halsted, id. 51.
605; Houghton v. Austin, 47 Cal. 654; 3 Clark v. City of Rochester, 28 N. Y.
Tugman v. City of Chicago, 78.Ill. 410; 605; Tugman v. Chicago, 78 Ill. 410.
O'Neil v. Am. Ins. Co., 166 Pa. St. 72.
448
[š 392.
STATE LEGISLATIVE DEPARTMENT.
exist in the local tribunals, but the legislature may, as to such
questions, formulate the provisions of the law and submit to
the localities the option of accepting or rejecting them; and
the power of the legislature to enact such local-option laws is
no longer an unsettled question."
In fact, as we have seen, it would be entirely beyond the
traditions and customs of the American people to deny this
right or admit the converse of the proposition, which would be
to allow the legislature to arrogate to itself the whole legisla-
tive power of the state and dispense with the principles of self-
government.”
1 Id. The power to allow local op-
tion has been denied in some states,
put is generally upheld. Cooley,
Const. Lim. (6th ed.) 145, notes.
“But, while general statutes must
be enacted by the legislature, it is
plain the power to make local regu-
lations, having the force of law, in
limited localities, may be committed
to the other bodies representing the
people in their local divisions, or to
the people of those districts them-
selves. Our whole system of local
government in cities, villages, coun-
ties and towns depends upon that
distinction. The practice has ex-
isted from the foundation of the
state, and has always been consid-
ered a prominent feature in the
American system of government. It
is recognized in the constitution it-
self, in the section which prescribes
to the legislature the duty to provide
for the organization of cities and in-
corporated villages, etc., restricting
their power of taxation and borrow-
ing. It contains an irresistible im-
plication that the authority to lay
local taxes and to borrow money for
local objects may be constitutionally
Committed to local boards or coun-
cils within the cities and villages.
And if such power may be conferred,
to be exercised according to the judg-
ment of such boards or councils, and
without the condition that the elect-
ors shall concur in the measure, it is
plain that it may be granted upon
that condition, or with any other
reasonable safeguards which may be
prescribed. I do not say that it can
be submitted to the electors of a city
or village to determine what powers
its local legislature shall possess, but
only that these bodies may be made
the depositories of such powers of
local government as the legislature
may see fit to prescribe, and the ex-
ercise of which is not repugnant to
any of the general arrangements of
the constitution.” Clark v. City of
Rochester, 28 N. Y. 605–34. The
principles of local option were denied
in Pennsylvania, but are now firmly
established. O’Neil v. American Ins.
Co., 166 Pa. St. 72.
* Against the tendency to grant
away local right to govern and to
draw every power to the legislature,
the constitutional principle cannot
be too often alluded to or too strenu-
ously insisted upon, that ancient cus-
toms and usages of the people are a
part of the framework of the consti-
tution, just as, for a long time, Con-
necticut and Rhode Island existed
without written constitutions. So
in a recent Minnesota case the court
well said: “It is a well-established
principle that the constitution will
be interpreted with reference to the
laws and customs prevailing at the
§ 393.] STATE LEGISLATIVE DEPARTMENT. 449
*
SEC. 393. May Create Subordinate Tribunals With Quasi-
Regislative Powers.- A constitution being framed for the gen-
eral supervision of the people must be construed in connection
with all the circumstances and conditions surrounding its en-
actment.
New conditions will constantly arise, and must be met and
disposed of by the application of old principles so far as appli-
cable, and the creation of new rules for new cases.
That special subordinate tribunals—boards of public works,'
boards of equalization, state boards of health, boards of educa-
tion, etc.—may be created and invested with a degree of power
in matters not only ministerial, but partaking somewhat of the
legislative and judicial, is now thoroughly established.”
The explanation for this seeming exception will generally be
found in the fact that such boards, or similar Ones exercising
this mixed power, are recognized at the common law, or when
the constitution was adopted.”
time of its adoption; and the distinc-
tion between what is a delegation of
power to adopt a charter or charter
provisions, and what is a delegation
of power to adopt a by-law or Ordi-
mance, must be determined largely
by ascertaining what had usually
been the custom in this state up to
and at the time this constitutional
amendment was adopted. Undoubt-
edly, the line of this distinction is
somewhat ill-defined. But, if there
is a doubt as to the constitutionality
of a law, that doubt must be resolved
in favor of its constitutionality.
Therefore, if, by reference to the
practice heretofore prevailing, it is
doubtful whether the delegation of
power is one to adopt charter provis-
ions or one to adopt mere by-laws or
Ordinances, that doubt must be re-
solved in favor of holding the law
delegating such power Constitutional.
There is another distinction between
what the legislature can practically
do and what it cannot. The main
reason for the existence of Ordinances
and by-laws has always been that
they regulated local subjects and
matters of detail which the legisla-
ture could not directly or properly
regulate by the passage of permanent
laws, either general or special. This
old principle must be applied to new
instances which will continually
arise under the constitutional amend-
ments prohibiting special legislation.
The regulation of such matters may
always be delegated in general terms
to local bodies, and it necessarily fol-
lows that more limited powers may
be thus delegated by the passage of
local-option laws for the regulation
of these matters. These are distinc-
tions which have sometimes been
overlooked in the decisions of those
states having similar constitutional
provisions.” State v. Copeland, 66
Minn. 315. *
1 Ryan v. Mayor, 91 Hun, 470; In re
|Board of Street Opening, 91 Hun, 477.
2 State v. State Medical Ex. Board,
32 Minn. 324; Ex parte Spinney, 10
Nev. 325; Williams v. People, 121 Ill.
84; People v. Hurlbut, 24 Mich. 44;
9 Am. Rep. 103; People v. Albertson,
55 N. Y. 50.
3 Houghton v. Austin, 47 Cal. 654.
29
450 STATE LEGISLATIVE DEPARTMENT. [$ 394.
These boards do not depend upon the principles of local self-
government, but are really based upon the necessities of the
case. The extent and limitation upon this power is to be found
in the regulations separating the three departments, and it is
generally conceded that such boards cannot be the final arbiters;
that any law which provides that private rights or private prop-
erty may be divested finally by the action of such boards is
unconstitutional, because not accompanied by the requirement
of due process of law; but if the general supervision of the
courts is retained, or a final appeal to the judicial tribunals is
provided for or allowed, the citizen may not say that he has
not had his day in court and has been arbitrarily divested of
his rights." -
SEC. 394. Cannot Eachaust Legislative Power.—It is beyond
the power of one legislature to pass an act which in effect re-
nounces the right of future legislatures to pass laws upon the
same subject;” and while this general principle is universal, it
must be qualified by the right of the legislature to grant prop-
erty and franchises and to make contracts which will be bind-
ing. A legislative grant cannot, on principles of the common
law, as well as on account of the inhibition of the constitution
against the state legislature impairing the obligation of a con-
tract, be abrogated by a subsequent legislature.”
So a corporate franchise is a contract, and cannot be divested
or impaired by subsequent acts of the legislature; and within
the power to create corporations and grant franchises is the
power to annex conditions in reference to exemptions from
taxation and granting certain special privileges and immunities,
See People v. Reynolds, 5 Gilm. 12;
People v. Board of Met. Police, 48
Barb. 524; Owens v. People, 113 Ill.
309,310; Cooley on Torts, 375; Weimer
v. Bunbury, 30 Mich. 201.
1 Emerick v. Harris, 1 Binney, 420;
Flournoy v. Jeffersonville, 7 Ind. 172.
“An act which is intended to effect
a uniform policy of insurance, and
which provides that commissioners
of insurance shall prepare and file
such forms of fire insurance policies
as in their judgment are proper, and
which prohibits the use of any other
form of policy, was unconstitutional
and void, as a delegation of the leg-
islative power to a subordinate tri-
bunal.” O’Neil v. American Fire Ins.
Co., 166 Pa. St. 72; Ex parte Grace,
12 Iowa, 208; 79 Am. Dec. 529; Wyne-
hamer v. People, 13 N. Y. 378.
21 Blk. Com.90; Cooley, Const. Lim.,
146, 147. These contracts must not;
be a mere shift to cover a matter
governmental, as distinguished from
private, for the functions of govern-
ment and police cannot be tied up.
See New Orleans v. Houston, 119°
U. S. 265; Thorp v. Rutland B. Ry.
Co., 27 Vt. 140.
3 Fletcher v. Peck, 6 Cranch, 87.
§ 395.] STATE LEGISLATIVE DEPARTMENT. 451
and these, when adopted and acted upon, are contracts, and are
binding until the rights are forfeited by judicial process.
It is impossible to fix any exact limitations upon the power
of the legislature. In matters purely governmental, however,
future legislatures cannot be restricted; and such instances as
those above noted, and similar ones, are not really restrictions
upon the legislative power, but proceed upon the binding qual-
ity of a state contract and are to be treated there with.
SEC. 395. Retroactive or Retrospective Laws.--It has often
been said that law is a rule for the guidance of future action and
conduct, but it cannot be said that the legislature cannot affect
that which is passed; neither can it be said that a law has no
operation upon events which took place prior to the passage of
the law."
1 Bronson v. Kinzie, 1 How. 317;
Hosmer v. People, 96 Ill. 58; Kenyon
v. Stewart, 44 Pa. St. 177.
“It is a principle in the English
law, as ancient as the law itself,”
says Chief Justice Kent in Dash v.
Rleeck, 7 Johns. 477, “that a statute,
even of its omnipotent parliament, is
not to have a retrospective effect.
Nova constitutio futuris formam im-
pomere debet, et non praeteritis. (Brac-
ton, lib. 4, fol. 228; 2 Inst. 292.) The
maxim in Bracton was probably
taken from the civil law, for we find
in that system the same principle,
that the law-giver cannot alter his
mind to the prejudice of a vested
right. Nemo potest mutare consilium
swum in alterius injuriam. (Dig., 50,
17, 75.) This maxim of Papinian is
general in its terms; but Dr. Taylor
(Elements of the Civil Law, 168) ap-
plies it directly as a restriction upon
the law-giver; and a declaration in
the code leaves no doubt as to the
sense of the civil law. Leges et con-
stitutiones futuris certwm est dare
formam, negotiis, non ad facta prae-
terita revocari, mºst nominatºm, et de
procterito tempore, et adhuc pendenti-
bus negotiis cawtwm sit. (Cod., 1, 14,
7.) This passage, according to the a `
best interpretation of the civilians,
relates not merely to future suits,
but to future, as contradistinguished
from past, contracts (technically, the
word to use is transaction) and vested
rights. (Perezii Praelec. t.) It is, in-
deed, admitted that the prince may
enact a retrospective law, provided
it be done eacpressly; for the will of
the prince, under the despotism of
the Roman emperors, was paramount
to every obligation. Great latitude
was anciently allowed to legislative
expositions of statutes; for the sepa-
ration of the judicial from the legis-
lative power was not then distinctly
known or prescribed. The prince
was in the habit of interpreting his
own laws for particular occasions.
This was called the interlocutio prin-
cipis; and this, according to Huber's
definition, was quando principes inter
partes logwwntur, et jus dicunt. (Prae-
lec. Juris. Rom., vol. II, 545.) No cor-
rect civilian, and especially no proud
admirer of the ancient republic (if
any such existed), could have re-
flected on this interference with
private rights and pending suits
without disgust and indignation; and
we are rather suprised to find that,
under the violent and irregular
452 STATE LEGISLATIVE DEPARTMENT.
[$ 395.
Retroactive laws may be passed legalizing past transactions
or affecting remedies upon contracts executed long before
the passage of the law and upon which a cause of action has
arisen before the passage of the law;" but the legislature has no
right by a retrospective act to declare how the court shall con-
strue a prior act, or to fix the meaning of that which is already
a law.”
The case of Calder v. Bull is a remarkable instance of legis-
lative interference with a vested right, which took place, how-
ever, in the absence of any fixed restriction in the constitution,
and was the granting of a new trial—an exercise of the judi
cial power by the legislature.”
No such power could now be exercised by any of our legis-
latures under the present system of partition of power. -
As we have seen, statutes which cut off all the remedies which
a person has for the violation of a contract or the commission
of a tort, without giving any time for future prosecution, are
not generally held to be constitutional.
The supreme court of Illinois, however, has recently held a
statute which provided that a suit in equity might be brought
to test the validity of a will at any time within two years after
the probating of the will, applicable to all wills, whether pro-
bated more than two years before the act or not, notwithstand-
ing the fact that the statute repealed by this act allowed three
years for bringing the suit.
genius of the Roman government,
the principle before us should have
been acknowledged and obeyed to
the extent in which we find it. The
fact shows that it must be founded
in the clearest justice. Our case is,
happily, very different from that of
the subjects of Justinian. With us,
the power of the law-giver is limited
and defined; the judicial is regarded
as a distinct, independent power; pri-
vate rights have been better under-
stood and more exalted in public
estimation, as well as secured by pro-
visions dictated by the spirit of free-
dom, and unknown to the civil law.
Our Constitutions do not admit the
power assumed by the Roman prince;
and the principle we are considering
is now to be regarded as sacred.” See
Trustees of Dartmouth College W.
Woodward, 4 Wheat. 518–578, note.
1 Welch v. Wadsworth, 30 Conn.
149; 79 Am. Dec. 236; 27 L. R. A. 696.
2 Dash v. Van Kleeck, 7 Johns. 477.
This of course does not apply to a
constitution. The eleventh amend-
ment of the United States constitu-
tion expressly directs the court as
to the manner in which a former law
should be considered. See Hans v.
Louisiana, 134 U. S. 1; Hollingsworth
v. Virginia, 3 Dall. 378.
83 Dall. 386; Cooley's Const. Lim.
(6th ed.) 114; Commonwealth v. War-
wick, 172 Pa, St. 140.
§ 396.] STATE LEGISLATIVE DEPARTMENT. 453
This decision proceeds upon the idea that both statutes were
statutes of jurisdiction, conferring upon the chancery court a
jurisdiction which it did not have at common law; but it is
difficult to understand how a statute, which at the same time
that it confers a jurisdiction cuts off a common-law remedy by
ejectment, can be said not to destroy all remedy."
The conclusion from all the authorities is, that notwithstand-
ing the supposed principle that it is the duty of the legislature
to enact laws for future guidance, the fact that an act is retro-
active in its effect, and injuriously affects past transactions, will
not invalidate it in all cases, even though by the act wested
rights are divested.”
SEC. 396. Bills of Attainder, Ea: Post Facto Laws, Bills of
Pains and Penalties.—The nature of bills of attainder, ea post
Jacto laws and bills of pains and penalties, although the first
two are among the express inhibitions of the constitution of
the United States, cannot be understood without comprehend-
ing the technical meaning of these words in the English law;
so, in drawing the distinction between American and English
law, sufficient was there said to point out the general nature
of laws of this character and to distinguish them from retro-
spective laws in general.”
The lay reader and student would naturally understand that
an inhibition against ea post facto laws would invalidate all
laws which acted upon past transactions unless usage had affixed
a technical sense to these words as used in English law.
Able counsel formerly argued that such was the meaning of
1 Spaulding v. White, 173 Ill. 127.
There is no evidence excepting the
declaration in the opinion of the
several cases can be cited where the
Common-law courts exercised that
jurisdiction. The decision of the
supreme court of Illinois that com-
mon-law courts of chancery did not
exercise jurisdiction to contest a
will; while on the other hand, Spence,
in his History of the Equitable Juris-
diction of Courts of Chancery, an
authority of far greater weight on
this subject than the Supreme court
of Illinois, explains the obsolete ju-
risdiction which chancery exercised
during that period which must be
held to be the common-law period
of Illinois, namely, prior to 1607, and
court seems, therefore, to be based
upon misinformation as to facts,
namely, the existence of the com-
mon-law jurisdiction of the kind; and
second, violates the principle of di-
vesting the individual of all of his
remedies by legislation, held to be
applicable to past transactions. See
Luther v. Luther, 122 Ill. 558; 1
Spence, Eq. Jur. 701, note. -
2 Watson v. Mercer, 8 Pet, 88; Free-
born v. Smith, 2 Wall. 160.
8 Amte, sec. 38.
454 STATE LEGISLATIVE DEPARTMENT. [$ 396.
the words in our constitution, but the uniform adjudication
of the courts confines the words to their technical meaning
in English law." -
The bill of attainder which corrupts the blood and forfeits
the estate of the individual and of his heirs is a thing unknown
under the American constitutional system; no forfeiture can
extend any further than to extinguish the right of the person
offending.” -
The bill of pains and penalties is one providing a penalty
less than death for an act committed before the passage of the
law.”
An ea post facto law in its technical sense is one fixing a
penalty or disability on account of an act done before the pas-
sage of the law. - -
The particular technical idea which distinguishes the legal
use of the term ea post facto from its popular use is that it is
confined to acts affecting crimes, making an act criminally
punishable. -
The difficulty in applying this term lies in this expression,
that it applies only to acts “punishing a matter criminally,”
and the uncertain part is as to what is intended by criminal
punishment. This is a question which formerly divided the
ablest minds, but is now well settled. In the Dartmouth College
case it was argued not only that the act of the legislature im-
paired the obligation of a contract, but that it was an ea post
facto act affixing pains and penalties.”
The difficulty of the question is apparent from a considera-
tion of the cases of Cummings and Garland,” referred to in a
former section. -
In these cases no imprisonment was inflicted or provided for
in the act. No tangible property was affected; there was
no corruption of blood; but the acts which were held to fall
tainder and confiscation are acts of
sovereign power, not acts of legisla-
1 The case of Blair v. Ridgeley, 41
Mo. 63, 97 Am. Dec. 248, is one of the
great cases in the books on this sub-
ject, applied to laws affecting suf-
frage.
2 Bigelow v. Forrest, 9 Wall. 339.
8 Amte, sec. 38.
4 Trustees v. Woodward, 4 Wheat.
518. Webster there said that at-
tion (pp. 558–589). In all of the early
cases an attempt was made on the
one side to extend the meaning of
eac post facto laws to all retroactive
laws. See Calder v. Bull, 3 Dall. 386.
5 Cummings v. Missouri, 4 Wall.
277; Ex parte Garland, 4 Wall, 333.
§ 396.] STATE LEGISLATIVE IDEPARTMENT. 455
within the inhibition against the infliction of criminal punish-
ment for past action, not punishable when committed, consisted
in depriving the parties of the right to follow their usual voca-
tion or calling, except on certain conditions to be subsequently
complied with; but when technically viewed, these cases fall
quite clearly within the rule. Cases of even greater difficulty
lmay arise. -
Under a similar law which injured Cummings and Garland,
the curators of a Missouri college were removed by an act of
the legislature which recited that a majority of the members
of the board of curators had failed to take the oath prescribed
by the general assembly, being a similar Oath to that involved
in other cases. The curators brought a quo warranto proceed-
ing and claimed that the act not only violated the obligation
of the contract, but was an ea post facto bill of attainder, in-
cluding a bill of pains and penalties."
The penalty of the act, being a forfeiture of the right to
longer continue as curators in this college, seems to fall within
the reasoning of the Cummings cases, and it was so treated
by the court, although the decision was founded upon other
grounds.”
1 * The oath referred to was what
is commonly called the convention
oath, and is an oath of loyalty in dis-
claiming hostilities in the past (if the
persons had offended they could not
take the oath), and promising future
fidelity.”
2 The court in that case says: “Nor
until the late opinions of the United
States supreme court (referring to the
Cummings and Garland cases) had I
supposed that such disability as is
involved in the requirements of the
oath could be held, in the constitu-
tional sense, an eac post facto law or
a bill of pains and penalties, for it
does not provide in any legal sense
for a trial and punishment for crime,
nor is it a legislative judgment. The
history of the times shows that the
requirement was not intended as a
punishment, either judicial or legis-
dative, but a disability imposed upon
the enemies of the state, supposed
to have been demanded by pressing
public danger. It was no more con-
sidered as coming within the federal
constitution than the many other
disabilities which are imposed with-
Out question for the public good.
But whatever our opinion of the
power of the legislature over corpo-
rations as embodied in the act of
March, the act of December 11, oust-
ing the relators, cannot be sustained
upon any principle known to our
laws, for the reason that it is judi-
cial in its character—a legislative
judgment. Had vacancies been cre-
ated by judicial proceedings so as to
reduce the board below a quorum,
or had the reduction been caused by
death or otherwise by which the
functions of the corporation had
become Suspended, the legislature
might doubtless have restored them
456 STATE LEGISLATIVE DEPARTMENT. [$ 397.
These cases where grants, contracts and corporation charters
are involved are distinguishable from the cases similar to Cum-
mings and Garland by the presence of a charter or contract;
but it would seem that where the legislative disfranchisement
or forfeiture was made to depend upon the past act, the law
involving such provisions would fall within the meaning of a
bill of pains and penalties.
SEC. 397. The Police Power.—Among the maxims of our law
is that “regard for the public welfare is the highest law.”"
This maxim, coupled with the restrictive one against the in-
dividual that “you shall so conduct yourself and so enjoy your
own as not to injure others,” are the foundation maxims of
the police power.
Definitions of police power are too numerous to recite or
even to refer to, and as there is no distinct characteristic of such
laws upon which jurists differ, no elaborate discussion of the
nature of the police power is essential.”
by filling such vacancies. But this
act assumes, without judicial find-
ing, that the relators have forfeited
their position; it cuts off any and
all defense they might make upon a
trial of their right, declares vacancies
and proceeds to fill them. Its object
and legal effect was to remove the
relators by direct legislation. State
v. Adams, 44 Mo. 570; 3 Am. Corp.
Cases, 515–525.” For a somewhat
similar case, where the question of
the act being eac post facto in its nat-
ure is only hinted at, see Regents v.
Williams, 9 Gill & Johns, 365; 31 Am.
Dec. 72.
1 “Salus populi suprema
Broom's Legal Maxims, 1.
Swinptuary Laws.—In England and
America formerly there existed to
some extent sumptuary laws, strictly
so called. These laws were based upon
public policy rather than the police.
They were laws against luxury, ex-
travagant expense in dress, diet, and
the like. (Anderson's Law Dic.) Sump-
tuary laws, strictly speaking, are not
allowable in America. Habits, occu-
pations, extravagance are not con-
trollable, unless in some sense they
affect the public safety, public health
or public morals. Mugler v. Kansas,
123 U. S. 623.
2 Broom, Max. (6th ed.) 365. “Sic
'wtere two, wit alienum, mon, loedas.”
See Munn v. Illinois, 94 U. S. 124.
3 “Many attempts have been made
in this court and elsewhere to define
the police power, but never with en-
tire success. It is always easier to
determine whether a particular case
comes within the general scope of
the power than to give an abstract
definition of the power itself, which
will be in all respects accurate. No
One denies, however, that it extends
to all matters affecting the public
health or the public morals. Beer
Co. v. Massachusetts, 97 U. S. 25; Pat-
terson v. Kentucky, id. 501.” Stone
v. Mississippi, 101 U. S. 814–18. Two
great cases which should be read by
every student for a general account
of the police power are Plumley v.
Massachusetts, 155 U. S. 461, and
Holden v. Hardy, 169 U. S. 366. See
In re Rahrer, 140 U. S. 545; Mugler
v. Kansas, 123 U. S. 623.
§ 397.] STATE TIEGISLATIVE DEPARTMENT. 457
“The state police,” says Mr. Justice Clifford, “in its widest
sense comprehends the whole system of internal regulation, by
which the state seeks not only to preserve the public order and
to prevent offenses against her authority, but also to establish
for the intercourse of one citizen with another those rules of
justice, morality and good conduct which are calculated to pre-
vent a conflict of interests and to insure to every one the
uninterrupted enjoyment of his own, as far as is reasonably
consistent with a like enjoyment of equal rights by others.”
The great unsettled questions in reference to the extent of
the state police power consist, as we have seen, rather in de-
termining how far the state police must yield to the federal
legislature in the exercise of its granted powers to regulate.
The law of the subject will never be settled, nor can it be
while change and development are the rule.”
No jurist would have the temerity to announce in express
words that congress possessed any power to directly regulate
the police of a state;” but indirectly, as we have seen, under
the commerce clause, the police power of the state (the general
welfare of the people of a state) is constantly being thrust aside
at the behest of some mere trafficker. No matter how noxious
the thing, if it can be bought and sold it cannot be prohibited.”
1 Tennessee v. Davis, 100 U. S. 257–
300. “Public police is in effect de-
fined by the great commentator of
the common law as the due regula-
*The adoption of the fourteenth
amendment brought in a new ground
for conflict and contention, but that
has been fully disposed of. Barte-
tion of domestic order, whereby the
citizens of a state are bound to con-
form to the rules of propriety and
good conduct, and to be moral, in-
dustrious and inoffensive in their
respective stations.” 4 Blk. Com. 162.
“Police,” says Bentham, “is a system
of precaution, either for the preven-
tion of crimes or calamities; ” and he
divides the subject into many heads,
of which three only will be men-
tioned: 1. Police, for the prevention
of offenses. 2. Police, for the preven-
tion of calamities. 3. Police, for the
prevention of endemic diseases. Ben-
tham’s Works, title “Offenses Against
Police,” vol. 3, p. 169 (Edinburgh ed.);
Tennessee v. Davis, 100 U. S. 257-300.
meyer v. Iowa, 18 Wall. 129; Mugler
v. Kansas, 123 U.S. 623; In re Fahrer,
140 U. S. 545. See particularly,
Holden v. Hardy, 169 U. S., at p. 382.
3In re Rahrer, 140 U. S. 555; Bar-
bier v. Connolly, 113 id. 27.
4 “The Tennessee act is an absolute
prohibition of all commerce in ciga-
rettes. There is no discrimination
between cigarettes of domestic man-
ufacture and those imported from
another state. A sale by an importer
in the Original package is just as
distinctly penal as would be a sale of
an article which was of domestic
manufacture. Limited to cigarettes
of domestic origin, or cigarettes
which, though imported from a for-
458 STATE LEGISLATIVE DEPARTMENT.
[$ 397.
It is said that the national government may not, through any
of its departments or offices, “assume any supervision of the
police regulations of the states. All that the federal authority
can do is to see that the states do not, under cover of this
power, invade the sphere of national sovereignty, obstruct or
impede the exercise of any authority which the constitution has
confided to the nation, or deprive any citizen of rights guaran-
teed by the federal constitution.”
Generally speaking, the police power is the power to regu-
late the conduct of the citizen. It extends as well to the
prohibition of many things which, except for their effect upon
Others than the individual restrained, would be lawful.
Police power is not unlimited and arbitrary, and when it is
invoked as a reason for an act of the legislature which regulates
the exercise of Ordinary employment or business, the regulation
must be a reasonable one; it must be beneficial to the public
and must not be a general restraint of trade,” and, as an exer-
eign nation or another state, have
lost their character as an import by
a breaking of the Original package,
or by having once been sold in the
state, the act would not conflict with
any permission of the federal con-
stitution. Powell v. Pennsylvania,
127 U. S. 678; 8 Sup. Ct. 992, 1257;
Mugler v. Kansas, 123 U. S. 623; 8
Sup. Ct. 273; Plumley v. Massachu-
setts, 155 U. S. 461; 15 Sup. Ct. 154.
. . . So in this case it must be
recognized that the cigarette is
equally a well-known subject of
barter, sale, trade and commerce, so
recognized in all the channels of
commerce, and by the laws of con-
gress which prescribe the original
package for purposes of taxation.
The question here, as in the Whiskey
'Case just cited, is: Whether, being
an article of commerce, can the state
of Tennessee, in the absence of legis-
lation by congress, prohibit their
importation from a sister state? Or,
when imported, prohibit their sale
by the importer? No important dis-
tinction can be drawn between this
case and Leisy v. Hardin, 135 U. S.
100.” Sawrie v. Tennessee, 82 Fed.
Rep. 615.
An Iowa statute prohibiting the
manufacture or sale of cigarettes is
an interference with interstate com-
merce, as applied to sales in small
boxes, containing ten each, of ciga-
retts, imported in that form from
other states without being inclosed
in other boxes or wrappers. Iowa v.
McGregor, 7.6 Fed. Rep. 956.
The real error in all this reasoning
consists in recognizing the noxious
article as a commodity of commerce
against the declaration of a state.
1 Cooley’s Const. Lim. (6th ed.) 706.
The whole original-package fallacy
consists in allowing the attribute
of a commercial commodity to the
noxious thing. If the people of a state
say we want none of it, the United
States should say you may transport
out or through, but we give you no
power to sell. See M., K. & T. Ry.
Co. v. Haber, 169 U. S. 614.
2 Munn v. Illinois, 69 Ill. 89–94;
Munn v. Illinois, 94 U. S. 113; Barling
v. West, 29 Wis. 307; 9 Am. Rep. 577.
§ 398.] STATE LEGISLATIVE DEPARTMENT. 459
cise of the police power, interferes with rights and regulates
the conduct of individuals. The question whether the regula-
tions are proper is for the courts to determine."
Under the police power, it is lawful to regulate the exercise
of any business for the general welfare or the public good; but
it is not lawful, under the guise of licensing for the purpose of
regulation, to entirely prohibit an individual in a class from
engaging in a lawful business.”
The right to engage in lawful vocations, to gain a livelihood,
is included within the word “liberty” as used in all constitu-
tions,” and if it is not strictly property, it partakes of the nature
of property and is an equally valuable and sacred right.”
The state has the power to prohibit the manufacture and sale
of intoxicating liquors, but at the same time it cannot by legis-
lative action destroy property and arbitrarily transform an in-
nocent act into a crime.”
The state may regulate any quasi-public business, such as inn-
keepers, warehouses, common carriers, pawnbrokers, the prac-
tice of medicine, etc., but it cannot entirely prohibit their exer-
cise. Those occupations which may be prohibited are such as
are directly noxious and deleterious to public health, public
morals, or distructive of private property." -
SEC. 398. Freedom of Contract May be Restrained.— Under
the police power the state may recognize the actual discrepancy
which exists between persons differently situated, and that one
class of individuals may be measurably within the power of
another, and so dependent upon them that they require the as-
sistance of a state to prevent unjust oppression and ruinous bur-
dens being placed upon them." -
1 Atkinson v. Goodrich Transp. Co., 25 Am. Dec. 677; Stevens v. State,
60 Wis, 141; 50 Am. Rep. 352; North 2 Ark. 291; Ex parte Garland, 4 Wall.
Chicago Ry. Co. v. Lake View, 105 333.
Ill. 211; Ritchie v. People, 155 Ill. 98; 5 Wynehamer v. People, 13 N. Y.
In re Jacobs, 98 N. Y. 109. 378–84; Bartemeyer v. Iowa, 18 Wall.
2 Cummings v. State, 4 Wall, 277— 129; In re Rahrer, 140 U. S. 545.
321. 6 Holden v. Hardy, 169 U. S. 366–93,
3 Stevens v. State, 2 Ark. 291; 35 where many instances are enumer-
Am. Dec. 72; Ex parte Virginia, 100 ated.
U. S. 340; People v. Marks, 99 N. Y. 7 In 1862, in Archiv. v. James, 2
377. Best & Smith, 66, 83, it was said:
4 Braun v. Chicago, 110 Ill. 188; “The truck act, when passed, was a
Hoke v. Henderson, 4 Dev. (N. C.) 1; practical deduction from a principle
460 STATE LEGISLATIVE DEPARTMENT. [$ 398.
The cry is loud and persistent that the freedom of contract
must be preserved, and that the Anglo-Saxon principles of in-
dividual liberty prevented the imposition of any terms and reg-
ulations as to mere contracts; but the practical effect of this
freedom, being to load the weak and helpless who were obliged
to obtain their sustenance by labor with burdens grievous to be
borne, has in some jurisdictions led to the adoption of regula-
tions between the employer and employee, and it is now gen-
erally held that the hours of labor may be regulated, at least
in certain lines of employment;" that conditions and circum-
stances under which labor shall be performed as to sanitary
regulations may be controlled,” and in some localities the man-
ner in which compensation shall be paid and received;” the age
at which persons employed in certain lines of labor may be
still more general, pervading more or
less all systems of law founded on ex-
perience; that is to say, that when
two classes of persons are dealing to-
gether and one class is, generally
speaking, weaker than the other, and
liable to oppression, either from nat-
ural or incidental causes, the law
should, as far as possible, redress the
inequality by protecting the weak
against the strong.” The reader will
not overlook the fact that there are
no such constitutional limitations in
England as here exist. The case is
cited to show the policy of such en-
actments. -
1 Holden v. Hardy, 169 U. S., at
p. 395; Comm. v. Hamilton Mfg. Co.,
120 Mass. 383. Cf. Ritchie v. People,
155 Ill. 98; Low v. Rees Printing Co.,
41 Neb. 127.
2 Holden v. Hardy, 169 U. S. 366.
3These laws are known asthe “anti-
truck laws.” It depends upon the
“length of the chancellor's foot,” so
to speak, which is but another way
of saying his views of the general
police, as to whether the law is held
valid. It will be found however, that
in most of the cases there was some
unjust discrimination or unreason-
able regulation.
Where these anti-truck acts have
been contested, without reference to
any collateral questions, they have
generally been held to be unconsti-
tutional. The West Virginia court,
in State v. Goodwell, 33 W. Va. 179,
Says such legislation is a species of
Sumptuary legislation. The general
objection to them is the restriction
On the freedom of contract.
Anti-truck laws have been upheld.
In Shaffer v. Union Mining Co., 55.
Md. 74, the law was sustained because
the power to require a corporation
to pay its employees in a certain
manner was necessarily incident to
the power which the legislature has
to “amend or alter’’ the charter of
the corporation. So in Peel Splint,
Co. v. State, 36 W. Va. 802; 17 L.
R. A. 385. In Hancock v. Yaden,
121 Ind. 365, 16 Am. St. Rep. 396, the
statute was upheld because it “pro-
tected and maintained the medium
of payment established by the SOV-
ereign power of the nation,” and was
in aid of government to preserve the
purity of the coinage. In many cases
these laws have been held invalid.
§§ 399, 400.] STATE LEGISLATIVE DEPARTMENT. 461
restricted; and in various ways the absolute untrammeled free-
dom of contract may be controlled." :
SEC. 399. Trusts, Combinations and Monopolies May be Pro-
hibited.— It is also well understood that the manner of Con-
ducting certain businesses which affect the general commercial
interests may be regulated and thereby unjust charges,” monop-
olies and trusts and combinations, the natural result of which
are injuries to the general prosperity, may be prohibited.”
SEC. 400. Sunday Laws.--While no law can be passed which
in any manner coerces any citizen in his religious belief, still
the sanctity of the Sabbath is recognized by the common law
of England and by the laws of all of the states in the Union;"
and in many states laws against the performance of unneces-
sary labor have been passed. In other states no attempt is
made to prohibit individuals from their freedom of labor or of
contract; but it is universally acknowledged that under the
police power the state has the right, aside from any sentiment
of religion, to require cessation of labor and to impose the duty
of rest;" but regulations of this nature must not discriminate
between different businesses all of which are perfectly lawful,
and require an observance by one person which is not exacted
of another.
The right and sanctity of religious worship is recognized as
being one of the rights of American citizens, and in most, if not
1 Ritchiev. People, 155 Ill., at p. 106;
Holden v. Hardy, supra.
phemy is recognized as an offense at
common law and in most of the crim-
2This was the battle fought in the
Granger Cases (Munn v. Illinois).
3 United States v. E. G. Knight Co.,
the Sugar Trust, 156 U. S. 1. See the
dissenting opinion for the principles
of the right of the state also. People
v. Gas Trust Co., 180 Ill. 268; People v.
N. R. Sugar Refining Co., 121 N. Y.
582; 18 Am. St. Rep. 843.
4. In other connections it will be
seen that Christianity is recognized
and protected. It was held to be a
part of the common law. Walston’s
Case, 2 Strange, 384. See also Rex v.
Carlisle, 3 B. & A. 161; Bloom v. Rich-
ards, 2 Ohio St. 390; Watson v. Jones,
13 Wall, 380. The crime of blas-
inal codes of the Union. Apart from
the sentiment of religion, it is diffi-
cult to understand how those states
can uphold a Sunday law of any char-
acter as a regulation of individual
health and rights of the people, and
at the same time refuse to Sanction
a public and general law regulating
the hours of labor. Religious liberty
and the separation of church and
state do not mean the renunciation
of Christianity by the people.
5 Ex parte Burke, 59 Cal. 6. See
also Commonwealth v. Starr, 144
Mass. 361; Soon Hing v. Crowley, 113
U. S. 710. :
462 STATE LEGISLATIVE DEPARTMENT. [$ 401.
all, of the states, the statutes protect the quiet and peaceful
exercise of this right, and prohibit any disturbance of the peace
in the immediate neighborhood wherein persons have erected
churches or established a place of public worship. The consti-
tutionality of such statutes is nowhere questioned."
SEC. 401. The State Tazing Power is a Limited Power.—
Among the famous expressions of Chief Justice Marshall is the
one made use of in the case of McCulloch v. Maryland,” that “the
power to tax is the power to destroy.” When viewed from
the standpoint of a tax imposed by a legislative assembly upon
the members of the community represented thereby, the power
to tax can hardly be said to be the power to confiscate, appro-
priate or destroy. Like most other well-sounding phrases, it
performs a useful function only when confined to specific sub-
sequent instances closely analogous to the original one wherein
it was used.”
The power to tax as it exists in America is by no means a
power to destroy or to appropriate. The taxing power is
1 State v. District Board, 76 Wis.
177–211.
24. Wheat. 316.
8The claim was that, there being
no express limitation on the state’s
power to tax, none could be created
by implication, so that in reality the
phrase means that the wºrestrained
power to tax is the power to destroy.
Mr. Justice Miller, while quoting the
expression, says: “The theory of our
governments, state and national, is
Opposed to the deposit of unlimited
power anywhere. The executive, the
legislative and the judicial branches
of these governments are all of lim-
ited and defined powers. . . . Of
all the powers conferred upon gov-
ernment that of taxation is most lia-
ble to abuse. Given a purpose or
object for which taxation may be
lawfully used, and the extent of its
exercise is in its very nature unlim-
ited. It is true that express limita-
tion on the amount of tax to be levied
Or the things to be taxed may be im-
posed by constitution or statute; but
in most instances for which taxes
are levied, as the support of govern-
ment, the prosecution of war, the
national defense, any limitation is
unsafe. The entire resources of the
people should, in some instances, be
at the disposal of the govern.
ment. The power to tax is
therefore the strongest, the most
pervading, of all the powers of gov-
ernment, reaching directly or indi-
rectly to all classes of the people. It
was said by Chief Justice Marshall,
in the case of McCulloch v. Mary-
land, 4 Wheat. 431, that the power
to tax is the power to destroy. A
strong instance of the truth of the
proposition is seen in the fact that
the existing tax of ten per cent., im-
posed by the United States on the
circulation of all other banks than
the national banks, drove out of ex-
istence every state bank of circula-
tion within a year or two after its
passage. This power can as readily
be employed against One class of in-
dividuals and in favor of another, so
§ 402.] STATE LEGISLATIVE DEPARTMENT. 463.
hedged about by limitations important and certain, relating to
the objects which may be taxed, the purposes for which taxes
may be imposed, frequently the amount which may be im-
posed, and the manner of its imposition; and especially do the
provisions of the constitution, which exempt all persons from:
unequal burdens, and other express provisions requiring uni-
formity of taxes, render the power to tax anything but an abso-
lute power, either as to manner or extent.
The power to tax in America, never extends any further than
the execution of a duty by a representative legislative body to
levy and assess upon the property within a state such imposi-
tions and burdens as are required by the public needs; and it
would be an absurdity equaled only by a felo de se to suppose
that such a body may lawfully so exercise the power against
itself as to destroy the subject of taxation.
Indeed, it is hard to understand how, using the word taa, in
its English sense, which was that a tax is a voluntary contribu-
tion ascertained, levied and assessed by the commons of Eng-
land as a free gift and grant of the people, and never to be
imposed upon any person not represented in that body, can
be called in America, a power to destroy.
SEC. 402. State Taxation Must be for a Public Purpose—
There being in the theory of American law no personal right
of government, and no one who had any rights over the person
or property of another, the rule of the English law, that taxes
are gifts for public use, is crystallized into an American maxim,
that taxation must be for a public purpose."
The principle is never denied in American jurisprudence.
Its application has occasioned great discussions, and these have
chiefly arisen by reason of the attempt of the legislature either
to engage in some enterprise which was called a public One,
and which was questioned because it incidentally benefited a
particular locality more than some other, or where the gov-
ernment extended a bounty or aid to some business owned and
controlled by individuals, but which it was claimed was of
such universal benefit as to warrant public aid. In modern
times it has been the practice to extend municipal aid in the
as to ruin the one class and give un- may be exercised.” He then held
limited wealth and prosperity to the that there was such limitation. Loam
other, if there is no implied limita- Ass’n v. Topeka, 20 Wall. 655–662.
tion of the use for which the power I See Elliott's Mun. Corp., pp. 152–54.
464 STATE LEGISLATIVE DEPARTMENT,
[š 402.
*
building of railroads. The battle as to the power to tax for
this purpose has been fought in every state in the Union. The
question is no longer an open One in the courts, and has been
put at rest partly by the decisions of the courts and partly by
public opinion crystallized either in the shape of a constitutional
inhibition or so strong a disapproval of the practice that it is
now seldom attempted.
The right of the legislature to grant public aid directly, or
to authorize municipal corporations and township authorities
to vote money or bonds to aid in the building of railroads, is in
most states held to exist, and the question of power is not an
unsettled one. Jurists have been divided in opinion upon it,
and the practical use of any discussion of the matter is to en-
able the student to know sufficient of the principles to apply
them in dissimilar cases involving the same principles. .*
Two of our greatest jurists' each declared such legislation
beyond the legislative authority. Each pointed out the danger
and disaster which were to be the legitimate fruits of such leg-
islation, and the prophecies have been uniformly fulfilled. In
most of the states, however, such legislation has been upheld.
The supreme court of Iowa, after Judge Dillon’s retirement
from that bench, promptly overruled the decision, Mr. Justice
Miller writing the opinion.”
Judge Cooley's opinion is one of the luminous expositions of
the subject, but was equally impotent to stay the hand of the
legislature except in that particular instance.
1 The late Thomas M. Cooley, and
Judge Dillon, the author of the justly
famous work on Municipal Corpora-
tions. People v. Town of Salem, 20
Mich. 453; Hanson v. Vernon, 27
Iowa, 28; 1 Am. Rep. 215.
2 Stewart v. Supervisors, 30 Iowa, 9;
1 Am. Rep. 238. He soon thereafter
became one of the judges of the
United States court and later a mem-
ber of the federal supreme bench.
He subsequently rendered the ma-
jority opinion in Loan Ass'n v. To-
peka, 20 Wall. 655. It is evident from
this opinion that his mind had under-
egone a change, and it is possible that,
had he been called upon to decide
again the Case wherein he overruled
Justice Dillon, he might have held dif-
ferently. In the Topeka case he says:
“We have referred to this history of
the contest over aid to railroads by
taxation to show that the strongest
advocates for the validity of these
laws never placed it on the ground
of the wºmlimited power in the state
legislature to tax the people, but con-
ceded that, where the purpose for
which the tax was to be issued could
no longer be justly claimed to have
this public character, but was purely
in aid of private or personal objects,
the law authorizing it was beyond
the legislative power and was an un-
authorized invasion of private right.”
§ 403.] STATE LEGISLATIVE DEPARTMENT. 465
In the famous case of Loan Ass’n v. Topeka," Mr. Justice
Miller distinguished between governmental aid to private cor-
porations engaged in public business and governmental aid to
private enterprises. This opinion stands as the exposition of
the true principles and extent of the taxing power, and con-
tains the best exposition of the line of demarcation between
public and private objects of a tax.
SEC. 403. What May be Tazed.—Every person within a state
or having property therein has need of governmental protection,
and in exchange therefor it is but equitable that he should bear
some portion of the public burden to provide for the mainte-
nance of orderly government. - -
It is therefore thoroughly established that a state has the
power to tax everything in the nature of property having a
situs within its limits.”
As we have seen in examining the question of interstate com-
merce, it is now settled that a state may impose a tax upon for-
eign corporations as a condition or compensation for the privilege
of doing business within a state. It may also exact a tax upon
resident corporations upon the business transacted, including
that transacted outside the state.”
A franchise or privilege conferred upon an individual or a
corporation may be taxed.* v
So it is within the power of the state to enact income tax
laws, or lay a tax on the privilege of receiving an inheritance,
bequest or legacy.”
120 Wall. 655.
2 Ficklen v. Shelby Co., 145 U. S.
1–22.
3 New York v. Roberts, 171 U. S.
658. Here it should be borne in mind
that the tax is upon the business
transacted, and is not affected by the
fact that the business consisted in
importing in Original packages only.
Id. 664.
4 California v. Pacific Ry. Co., 127
TJ. S. 41. See also Adams Express
Co. v. Ohio, 165 U. S. 194.
5 Mager v. Grima, 8 How. 490; In re
Hamilton, 148 N. Y. 310; State v.
Ferris, 52 Ohio St. 1; ante, sec. 283;
Magoun v. Illinois T. R. & S. Bank,
170 U. S. 283; Pollock v. Farmers’
Loan & Trust Co., 157 U. S. 578;
Drake v. Kochersperger, 167 Ill. 122.
Mr. Justice McKenna, after stat-
ing the case, delivered the opinion of
the court: “Legacy and inheritance
taxes are not new in our laws. They
have existed in Pennsylvania for over
sixty years and have been enacted in
other states. They are not new in
the laws of other countries. In State
v. Alston, 94 Tenn. 674, Judge Wilkes
gave a short history of them as fol-
lows: “Such taxes were recognized
by the Roman law. (Gibbon's De-
cline and Fall of the Roman Empire,
vol. 1, pp. 163–64.) They were adopted
30
466 STATE LEGISLATIVE DEPARTMENT. [$404.
Subject to the limitations in the United States statutes, the
states have a right to tax owners of national bank stock upon
the value of the stock."
SEC. 404. Eacemptions.— The states have a limited power to
exempt property from taxation, but like all other powers this
is not arbitrary and absolute.
Our constitution comprehends equality of right and equality
of burden, and exacts the latter as strictly as the former; and
the legislatures may not benefit private individuals by releasing
them from the common burden, any more than by making them
objects of direct pecuniary aid. These principles are so lucidly
explained and rigidly enforced in the late income tax cases as
to leave little for further discussion.”
It is common, however, to exempt property of religious, elee-
mosynary and educational Societies from some of, or a portion
of, the burdens, and this is recognized to be more than a com-
pensation for the general benefit conferred upon the whole com-
munity.”
in England in 1870, and have been
much extended since that date.
(Dowell’s History of Taxation in
England, 148; Acts 20 Geo. III, ch.
28; 45 Geo. III, ch. 28; 16 and 17
Vict., ch. 51; Green v. Craft, 2 H. Bl.
30; Hill v. Atkinson, 2 Meriv. 45.)
Such taxes are now in force gener-
ally in the countries of Europe. (Re-
view of Reviews, February, 1893.) In
the United States they were enacted
in Pennsylvania in 1826; Maryland,
1844; Delaware, 1869; West Virginia,
1887; and still more recently in Con-
necticut, New Jersey, Ohio, Maine,
Massachusetts, 1891; Tennessee in
1891 (ch. 25, now repealed by ch. 174,
Acts 1893). They were adopted in
North Carolina in 1846, but repealed
in 1883. Were enacted in Virginia in
1844, repealed in 1855, re-enacted in
1863, and repealed in 1884.” Other
states have also enacted them — Min-
nesota by constitutional provision.
“The constitutionality of the taxes
has been declared, and the princi-
ples upon which they are based ex-
plained, in United States v. Perkins,
163 U. S. 625, 628; Strode v. Common-
wealth, 52 Pa. St. 181; Eyre v. Jacob,
14 Gratt. 422; Schoolfield v. Lynch-
burg, 78 Va. 366; State v. Dalrymple,
70 Md. 294; Clapp v. Mason, 94 U. S.
589; In re Merriam’s Estate, 141 N. Y.
479; State v. Hamlin, 86 Me. 495;
State v. Alston, 94 Tenn. 674; In re
Wilmerding, 117 Cal. 281; Dos Passos,
Collateral Inheritance Tax, 20; Minot,
v. Winthrop, 162 Mass. 113; Gels-
thorpe v. Furnell, 20 Mont. 299; 51
Pac. Rep. 267. See also Scholey v.
Rew, 23 Wall. 331.” Magoun v. Illi-
nois T. & S. Bank, 170 U. S. 283.
1 Merchants’ Bank v. Pennsylvania,
167 U. S. 461.
2 Pollock v. Farmers’ Loan & Trust
Co., 157 U. S. 449. -
3A. legacy or bequest to a city is
not exempt from taxation under the
idea that the agencies of the govern-
ment are not subject to taxation, for
in that case this property is held in
property rather than in Sovereignty,
that is, held as the private property
§ 405.] STATE LEGISLATIVE DEPARTMENT. 467
Exemption from taxation does not extend to special assess-
ments or special taxation for local improvements."
In the creation of corporations the payment of taxes is some-
times waived or exempted, in exchange for a payment of a
portion of the gross receipts, as was done in the case of the
Illinois Central Railroad Company, heretofore noticed;” and in
such cases the provisions of such a charter amounting to a con-
tract may bind further legislation; * but an exemption of the
corporation from taxation upon its capital stock does not neces-
sarily exempt its shareholders from the payment of taxes upon
the value of their shares.”
SEC. 405. Eminent Domain.—The original property right in
all of the land in the English colonies was formerly in the
crown, and upon the achievement of independence the right of
the crown became wested in the people of the United States.”
Among the principles of government which we derive from
the English law is that which passes under the name of eminent
domain; that is, notwithstanding the feudal idea of tenure is
abolished, and the grantee of land from the state or United
States is vested with the absolute title, there is still recognized
a right of paramount dominion, which enables the government
Sessed for benefits on account of local
improvements. People v. Trustees
of Schools, 118 Ill. 52.
I Yates v. Milwaukee, 92 Wis. 352;
of the municipality. In re Hamilton,
148 N. Y. 310. -
The exemption of purely public
charities from taxation is held, in
Philadelphia v. Overseers of Public
Schools, 170 Pa. St. 257, to be inap-
plicable to a school conducted by a
master as a business enterprise, under
a lease by which he pays one-eighth
of the gross receipts from tuition for
the use of the property, although the
corporation owning it pays the tui-
tion of a small part of the pupils out
of the income received from endow-
ments and legacies, and was organ-
ized to conduct a school for the rich
at reasonable rates, and for the poor
gratuitously.
The school land granted by the
|United States to the states, and di-
rected to be used for school purposes,
cannot be burdened with taxation,
either general or special, or be as-
County of McLean v. Bloomington,
106 Ill. 213. In this case the county
Court-house square was held to be
Subject to such tax.
* Sec. 368. A provision requiring
a bank to pay one-half of one per
cent. On each share of stock in lieu
of all other taxes does not exempt
the capital stock of the corporation
Inor exempt its surplus from taxa-
tion. Shelby Co. v. Union & Plant-
ers’ Bank, 161 U. S. 149.
3 New Orleans v. Citizens’ Bank,
167 U. S. 371.
4 Id. Cf. Shelby Co. v. Union &
Blanters’ Bank, supra.
5 Jay, C. J., in Chisholm v. Georgia,
2 Dall. 418.
468
[$405.
STATE LEGISLATIVE DEPARTMENT.
to retake the property for the public good. It is the same thing
as the dominum eminens of the civilians; " and the rule in Amer-
ica is, that while the private property of an individual cannot
Le divested without his consent for the benefit of any other
person, the private property of all persons may be divested
wholly, or partially, or subjected to damage for the public
good—just compensation being made—subject to certain con-
1 Gilmer v. Time Point, 18 Cal. 229.
“The revolution, or rather the Dec-
laration of Independence, found the
people already united for general
purposes, and at the same time pro-
viding for their more domestic con-
cerns by state conventions and other
temporary arrangements. From the
Crown of Great Britain, the sover-
eignty of their country passed to the
people of it; and it was then not an
uncommon opinion that the unap-
propriated lands, which belonged to
that crown, passed not to the people
of the colony or states within whose
limits they were situated, but to the
whole people; on whatever principles
this opinion rested it did not give
way to the other, and thirteen sover-
eignties were considered as emerged
from the principles of the revolution,
combined with local convenience and
considerations; the people neverthe-
less continued to consider themselves,
in a national point of view, as one
people. . . .
“Every state constitution is a com-
pact made by and between the citi-
zens of a state to govern themselves
in a certain manner; and the consti-
tution of the United States is like-
wide a compact made by the people
of the United States to govern them-
selves, as to general objects, in a cer-
tain manner. By this great compact,
however, many prerogatives were
transferred to the national govern-
Iment, such as those of making war
and peace, contracting alliances,
coining money, etc.” Chisholm v.
Georgia, 2 Dall., at p. 470.
“To each and every sovereignty be-
long certain rights which are deemed
eSSential to its existence. These are
called by the civilians jura majesta-
tis, or rights of sovereignty. Among
them is the jus eminens, or the su-
preme power of the state over its
members and whatever belongs to
them. When applied to property
alone, it is called the dominum emi-
mens, or the right of eminent domain;
that is, the right of the sovereignty
to use the property of its members for
the public good or public necessity.
The word necessity in this connection
is not to be used in too limited a
Sense; it means a want, an exigency,
an expediency, for the interest or
Safety of the state. (Vattel, liv. 1,
ch. 20, sec. 224; Cooper's Justinian,
456; Bowyer, Universal Pub. Law,
227, 372; Beekman v. Railroad Co., 3
Paige, 73; 3 Story on Const. 117.)
Although the right of levying taxes
upon private property generally in
the state results from, and is part of,
the right of eminent domain, that
term, in its more modern acceptance,
applies especially to the taking of
Some particular private property for
Some particular use.” Gilmer v. Lime
Point, 18 Cal. 229.
For the course of the English law,
the student should read Ball v. Her-
bert, 3 Term R. 253; London Wharf
Cases, 1 Wm. Blk. 583. Early Ameri-
can cases of interest are Respublica
v. Sparhawk, 1 Dall. 362; Vanhorne
v. Dorrance, 2 Dall. 304; Lindsay v.
Commissioners, 2 Bay, 41, cited in
Cooper's Justinian, p. 457.
§ 405.] STATE LEGISLATIVE DEPARTMENT. 469,
stitutional limitations against the government and protection
to the individual.
The constitution of the United States and of all the states:
contain substantially the same provision, that private prop-
erty shall not be taken for public use without just compensa-
tion."
In many of the states an additional provision exists, that
property shall not be taken or damaged unless just compensa-
tion for the damage be made, and in the latter case there is no
necessity that any part of the land be touched or taken; but
if a public work, or a work falling under that designation, al-
though conducted by private individuals, or the exercise of a
franchise, damages an individual more than it benefits him, he
is entitled to compensation for the damage.”
1 As to what is taking and damag-
ing, see Pumpelly v. Green Bay Co.,
13 Wall. 166.
2 The following from a leading Illi-
nois case well states the correct
view: “The question then recurs,
what additional class of cases did
the framers of the new constitu-
tion intend to provide for which are
not embraced in the Old P. While
it is clear that the present constitu-
tion was intended to afford redress
in a certain class of cases for which
there was no remedy under the old
constitution, yet we think it equally
clear that it was intended to reach
every possible injury that might be
occasioned by a public improvement.
There are certain injuries which are
necessarily incident to the ownership
of property in towns or cities which
directly impair the value of private
property, for which the law does not,
and never has, afforded any relief.
For instance, the building of a jail,
police station, or the like, will gener-
ally cause a direct depreciation in
value of neighboring property, yet
that is clearly a case of dammwm.
absºwe injuria. So as to an obstruc-
tion in a public street — if it does not
practically affect the use or enjoy-
Iment of neighboring property, and
thereby impair its value, no action
will lie. In all cases, to warrant a
recovery, it must appear there has
been some direct physical disturb-
ance of a right, either public or pri-
vate, which the plaintiff enjoys in
Connection with his property, and
which gives to it an additional value,
and that by reason of such disturb-
ance he has sustained a special dam-
age with respect to his property in
excess of that sustained by the public
generally. In the absence of any
statutory or constitutional provision
On the subject, the common law
afforded redress in all such cases, and
we have no doubt it was the inten-
tion of the framers of the present
Constitution to require compensation
to be made in all cases where, but for
Some legislative enactment, an ac-
tion would lie by the common law.
The English courts, in construing
certain statutes providing compensa-
tion for injuries occasioned by public
improvements, in which the language
is substantially the same as that in
our present constitution, after a most
thorough consideration of the ques-
tion, lay down substantially the same
rule here announced. Chamberland
v. West End of Tondon Ry. Co., 2
Pest & Smith, 605; 110 E. C. L. 604;
470 STATE LEGISLATIVE DEPARTMENT. [$406.
SEC. 406. Who May Eatercise the Right.—This right of emi-
nent domain may be exercised as a matter of course by the state
itself for the purpose of obtaining the title to land for direct
use by the state.
It was formerly very seriously contended that the United
States could not exercise this right within a state, but it is now
ettled that it may obtain the title by purchase or condemna-
tion within a state, or within a municipal corporation, for the
purpose of erecting public buildings or public works."
It is also settled that this power may be exercised by the
United States directly, or by the state for the benefit of the
United States, although there is not entire harmony on the
Question.” - *
The right of eminent domain is now seldom exercised by in-
dividuals, firms or unincorporated associations, but is generally
exercised by corporations engaged in some public enterprise;
but this special privilege, franchise, or liberty, as it would be
termed in the English law, may be granted to associations or
individuals, provided the object is of a public character which
warrants the exercise of the power.” f
This right to exercise the power of eminent domain falls
within the meaning of the term “franchises,” and can be con-
ferred only by legislative enactment.”
The property of the state or of the United States may be used
for the public good, although private individuals may suffer
damage thereby. Such damage is not in a legal sense an in-
jury, and falls within the rule damnum absºue injuria.
So in case of a navigable stream. Although the owners of
the land adjoining the bank of the stream have certain ripa-
rian rights in the stream as against other private persons, the
state, in such cases, owns the bed of the stream, and holds it,
MaCn. & G. 155.”
Chicago, 102 Ill. 64.
1 Kohl V. United States, 91 U. S. 367.
2 Gilmer v. Lime Point, 18 Cal. 229.
3 In re Kerr, 42 Barb. 119. See also
Ash v. Cumming, 50 N. H. 591; Tide
id. 617; Beckitt v. Midland Ry. Co., Rigney v. City of
L. R. 1 C. P. 241; on appeal, 3 C. P.
82; McCarthy v. Metropolitán Board
of Works, L. R. 7 C. P. 508. These
statutes required compensation to be
made where property was ‘injuri-
ously affected,” which the English
courts construe as synonymous with
the word ‘damaged.” Hall v. Mayor
of Bristol, L. R. 2 C. P. 322; East &
West India Docks Co. v. Gattke, 3
Water Canal Co. v. Archer, 9 G. & J.
479. See argument in 22 Cal. 402–
422,
4 California v. Pacific Ry. Co., 127
U. S. 40, 41.
§ 406.] STATE LEGISLATIVE DEPARTMENT. 471
not merely in its right of eminent domain, but in actual pro-
priety."
The right of eminent domain extends properly to private
property, and to private property only; but in the case of these
navigable streams the state violates no proprietary interest by
using them as it sees fit. Consequently, except as restrained
by the acts of congress, the states may obstruct or use these
streams as they please, without compensating individuals for
damages.” - & -
This proprietary ownership of the stateis, however, an owner-
ship for the public at large, and is not of such character as to
allow the granting of it to a private person for private pur-
poses.”
1 The stream must be navigable in
fact, and a non-navigable stream Can-
not be taken by a legislative declara-
tion that it is navigable. Morgan v.
King, 35 N. Y. 454.
“In the examination of any of
the numerous questions relating to
water-courses that may arise, no dis-
cussion would be complete which
failed to refer to the ancient and
learned treatise De Jure Maris, by
Sir Matthew Hale, and which, after
the lapse of two centuries, remains
the most concise, comprehensive and
reliable work on the subject of which
it treats. As appears from the learned
note of Judge Cowen to Ex parte
Jennings (6 Cow. 537), under the fol-
lowing title, ‘Of the right of preroga-
tive in private or fresh rivers,’ it
reads: “The king, by an ancient right
Of prerogative, hath had a certain
interest in many fresh rivers, even
where the sea does not flow or re-
flow, as well as salt or arms of the
sea, and those are these which follow:
“‘1st. A right of franchise or priv-
ilege that no man may set up a com-
mon ferry for all passengers, without
prescription time Out of mind or a
charter from the king.
“‘2d. An interest, as I may call it,
of pleasure or recreation.
“‘3d. An interest of jurisdiction.
“And another part of the king's
jurisdiction in reformation of nui-
sances is to reform and punish nui-
sances in all rivers, whether fresh or
Salt, that are a common passage not
Only for ships and greater vessels,
but also of smaller, as barges and
boats, to reform the obstruction or
annoyances that are therein to such
Common passage; for as the Common
highways on the land are for the
common-land passage, so these kind
of rivers, whether fresh or salt, that
bear boats or barges are highways by
water; and as the highways by land
are called altoe vice regio, so these
public rivers for public passage are
called fluvie regales and streomes le
Roy, not in reference to the propriety
of the river but to the public use.’”
Per Ruger, C. J., in Smith v. City of
Rochester, 92 N. Y. 463, 478, 479.
2 Bailey v. Phila., W. & B. Ry. Co.,
4 Harr. 384; 44 Am. Dec. 593. See
Willson v. Blackbird Creek Marsh
Co., 2 Pet. 245. The right which the
individual has to the natural flow of
the stream is not such a One as can
be set up against the State. Lansing
v. State, 4 Wend. 9; 21 Am. Dec. 89;
Id., 8 Cow. 146.
8 Lansing v. Smith, 4 Wend. 9–20.
472 STATE LEGISLATIVE DEPARTMENT. [$407.
SEc. 407. The Purpose Must be a Public One.—Upon the
same principle that the burden of taxation may only be laid
on the individual owner of property for public purposes, so his
right of property can only be interfered with, damaged or di-
vested for a public purpose; and the only questions now open
for argument are as to what are considered public purposes."
It was decided at an early day, upon reasons not altogether
satisfactory and conclusive, that the land of one man might
not be condemned for the purpose of making a private way for
an individual, notwithstanding this way was a necessity for
the individual;” but it is not necessary that the use which shall
be made of the improvement shall be directly and primarily by
the public: it is sufficient if there is appreciable advantage or
benefit to the community.”
It is no objection that the improvement is local in its char-
acter, as confined to school, district or township, county Or
municipality. The question once asked by a distinguished
statesman, What interest has North Carolina in a canal in
Connecticut? has been answered by the settled rule that the
public in general is interested in the advancement of every lo-
cality.
“The legislature is the sole judge of whether it is expedient
to allow corporations to take land and property for a public
use; but it is for the courts to decide whether or not the con-
templated use is a public one.
“A public use is involved, and land and property may be
1“If the use for which the property
is taken be to satisfy a great public
want or public exigency, it is a pub-
lic w8e in the meaning of the consti-
tution, and the state is not limited
to any given mode of applying that
property to Satisfy the want Or to
meet the exigency. The power which
is authorized to take is also empow-
ered to appropriate, or apply the thing
taken to the use designed. Hence,
it may itself make the application,
or it may make it through the instru-
mentality of others. Where private
property is taken for the purposes of
railroads, aqueducts, canals, turn-
pikes, etc., the state usually makes
the application through the agency
of private corporations, to which she
transfers the ownership of the prop-
erty taken. And it seems not to be
important whether the corporation
through whose instrumentality the
object is to be attained be a domestic:
or a foreign corporation. Varrick v.
Smith, 3 Paige, 45; Railroad Co. v.
Davis, 2 Dev. & Bat. 451; 2 Gibbs,
447; 2 Kent's Com. 339; Morris C. &
B. Co. v. Townsend, 24 Barb. 665.” Gil-
mer v. Lime Point, 18 Cal. 229.
2Taylor v. Porter, 4 Hill, 140; 40.
Am. Dec. 274.
3 McQuillem v. Hatton, 42 Ohio St.
202; Olmstead v. Camp, 33 Conn. 532.
§ 408.] STATE LEGISLATIVE DEPARTMENT. 473.
taken under the power of eminent domain by railroads. This
is the most common Occasion for the use of that power. It
may be used also by a mining company; by manufactories;
also for booms; for a cemetery; for an aqueduct; for parks,
schools, water-works, etc. & g
“In order to constitute a public use it is not necessary that
the improvement should directly benefit the people of the
whole state, but the benefit may affect only a particular com-
munity. It cannot, however, be for the benefit of a few indi-
viduals only. And the power of eminent domain may be
exercised by individuals as well as by corporations if the stat-
ute so provides, and may be delegated to foreign corporations.”
SEC. 408. Procedure—Jury Trial—Due Process of Law.— .
Without attempting to treat the details of procedure in such
cases, it may be said to be the established view that because
the exercise of the right of eminent domain is the exercise of
a sovereign right, well understood and established in English.
law, and with an established procedure in that system, and
was adopted into American jurisprudence in conformity with
the principles of the English law, the requirements of due pro-
cess of law under that system of jurisprudence not providing
a trial by jury in such cases, it is competent for the legislatures.
of the different states to establish a procedure for the ascer-
tainment of damages and compensation without a jury trial.”
Although such is undoubtedly the general rule, it is not uni-
1 Cook, Stock and Stockholders (3d
ed.), sec. 904.
* “I know these laws have been
questioned, but it seems now to be
settled that the legislature, in the as-
sertion of its right of eminent do-
main, may not only take private
property for public use, but prescribe
the mode of assessing damages, even
without trial by jury. Bonaparte v.
Camden & Amboy R. R. Co., 1 Bald.
219; S. C., 3 Fed. Cas. 821. But, in
truth, this is a trial by jury, such as
was known and used in the adminis-
tration of justice in this state on
various Occasions where the legisla-
ture conferred a special remedy,
even before the present constitution,
the requisition of which is simply
that “trial by jury shall be as hereto-
fore.” Art. 1, sec. 4. Neither do we
think the act is open to any constitu-
tional objection on the ground, taken
in argument, that it is a partial, if
not a personal, remedy given to this
plaintiff and certain other citizens
to the exclusion of all others, and
against these defendants only. The
remedy is given to all who are liable
to the mischief, and against those
only who can do the injury.” Bailey
v. P., W. & B. R. R. Co., 4 Harr. 384;
44 Am. Dec. 593–608. The Bonaparte.
case, above cited, is one of the great-
est discussions of the question.
474. STATE LEGISLATIVE DEPARTMENT. [$408.
versal, and has been changed in many states by constitutional
enactments, which require that in some stage of the proceed-
ings the party shall be entitled to a jury trial." The legislature
must follow some recognized procedure according to the course
of the common law, or provide for a regular hearing with no
tice and a jury trial.” -
A procedure without jury is not favored in this country;
but the supposed injustice on account of the rule just men-
tioned is lessened when it is considered that the remedy pro-
vided by these statutes is cumulative of the common-law
remedy, and that a party has the right to sue for his damages
in the Ordinary courts of justice, where he may have a jury
trial.”
The construction of a work or conducting a business under
a license given by virtue of this law does not warrant any un-
necessary damage, but, on the contrary, implies the exercise of
care as to means and methods, so that the least possible dam-
age shall result; and for a failure to adopt and use them an
individual may sustain an action.*
1 Bailey v. Phila., W. & B. Ry. Co.,
4 Harr. 384; 44 Am. Dec. 593; Kohl
v. United States, 91 U. S. 376; Mills
on Eminent Domain, sec. 91. See, on
more modern rule, Mitchell v. Illinois
B. R. Co., 68 Ill. 286; Paul v. Detroit,
32 Mich. 108; Brown v. Beatty, 34
Miss. 327; Trombly v. Humphrey, 23
Mich. 431. -
2 Santa Clara Co. v. Southern Pac.
Fy. Co., 18 Fed. Rep. 385, 420–25.
8 “The just compensation to be
made for damage to land was, in Our
opinion, intended as an indemnity,
not for successive, Constantly accru-
ing damages, recoverable as they
may afterward be suffered, but for
all the damage the land-owner may
suffer from all the future conse-
quences of the careful and prudent
operation of a railroad; it being the
immediate damage done to the land-
owner's estate by changing its per-
manent condition and impairing its
present value. See Heard v. Middle-
sex Canal Co., 5 Metc. 81. The ac-
tion for damage may be regarded as
in the nature of one kind of condem-
nation proceedings. Upon this point
of estimation of damages it was said
in the Maher case (91 Ill. 312), that
the structure being permanent in its
Character, “It could be determined,
with a reasonable degree of certainty,
how much it depreciated the value
of the land as a permanent struct-
ure — how much less it was worth
after the erection of the structure
than before.’” Chicago & E. T. R. R.
Co. v. Loeb, 118 Ill. 203–14.
4 “But the providing of such com- .
pensation for unavoidable injuries to
property was clearly never intended
to license companies to overflow vast
bodies of land which might be fully
protected by the building and main-
taining proper culverts. Now, in a
case of this kind, when the company
commences operating its road with-
out having built such culverts or
provided some other efficient means
for the escape of the water, is it,
§§ 409, 410.] STATE LEGISLATIVE DEPARTMENT. 475.
SEC. 409. Measure of Damages.—The measure of damages
in such cases is, that for the land actually taken its value must
be paid, irrespective of any collateral benefits which may arise.
As to land not taken, but simply damaged, the difference in
value on account of the damage is the rule; and in ascertaining
this, the benefit which the individual receives, peculiar to him-
self, may be taken into account."
SEC. 410. General and Special Legislation.—In the absence
of constitutional requirements the legislature has the right to
exercise its power in any form which suits the desire of the
law-maker, but in most of the states there are constitutional in-
hibitions against special legislation in reference to designated
objects. :
Generally it is required that objects of a public nature shall
be effected by public and general legislation, while matters of
a private nature may be accomplished without such limitation.”
It is thereforé very important to distinguish between what is
private and local and what is general legislation. Upon this
subject Royce, J., in the Vermont court says: “It is frequently
difficult to distinguish between a public and a private law. The
definitions given by Blackstone are, that a public act is a uni-
versal rule that regards the whole community, and private acts
are those that concern only a particular species, thing or per-
son; as, acts relating to any particular place, or to divers towns
or counties, or to a college or university. Applying the above
definitions to this charter, it would no doubt have to be re-
garded as a private act. But in this country the disposition
has been to enlarge the limits of the class of public acts, and to
treat all acts of a general character, or which in any way affect
the community at large, although affecting only a particular
constructed.” O. & M. Ry. Co. v.
Wachter, 123 Ill. 440–46.
thereby relieved of the duty of doing
so altogether? To say this is to as-
sert that one may discharge a legal
duty by utterly disregarding, it which
is simply absurd. To maintain an
embankment of a road in that con-
dition is not only a violation of a
public duty, but is a direct invasion
of the private rights of the owners
of the lands thus constantly menaced
by Overflows which could never reach
them if the road-bed were properly
1 Comstock v. Clearfield & M. Ry.
Co., 169 Pa. St. 582; Monongahela
Nav. Co. v. United States, 148 U. S.
312, 327–28; Shoemaker v. United
States, 147 U. S. 282; Rigney v. City
of Chicago, 102 Ill. 64; Chicago & E.
I. R. R. Co. v. Loeb, 118 Ill. 203.
2 Sedgw. Stat. and Const. Law, 25,
and cases cited.
476 STATE LEGISLATIVE DEPARTMENT. [$ 411.
locality, if they apply to all persons, as public acts. Hence, it
has been held that the establishment of towns and counties and
their boundaries, court-houses, jails, bridges and ferries, are all
matters of public policy, and acts relating to them public acts.
Judge Dillon, in his learned treatise on Municipal Corpora-
tions (vol. 1, p. 167), says that courts will judicially notice the
charter or incorporating act of a municipal corporation with-
out being specially pleaded, not only when it is declared to be
a public statute, but when it is public or general in its nature
or purposes.”
This question is not to be decided by any designation which
the legislature may place upon the act, nor the fact that the
law may be bound with special and private acts, but the nat-
ure and object of the act must determine its quality.”
SEC. 411. Title of an Act.—A suspicion or conviction in the
minds of the people that individual legislators are prone to
deceive the aggregate body by inserting innocent-looking pro-
visions in a statute of general interest, thereby obtaining leg-
islation which did not receive the full and proper deliberation
of the aggregate body, led to the adoption in most of the states
of the Union of a provision in the constitution that no act of
the legislature should relate to more than one subject, and that
this should be expressed in the title of the act.
This provision must receive a reasonable construction, and
all that is required is that the general title of the act should be
expressed, and all that follows in the act should be germane
to and properly relate to the subject named in the act.”
1 Village of Winooski v. Gokey, 49 v. Covington, 29 Ohio St. 102, such
TVt. 282–85. .
2 Bank of U. S. v. Smedes, 3 Cow.
362. Acts which can affect only one
city in a state have occasionally
been passed, and it depends upon the
peculiar phraseology of the consti-
tutional inhibition and the particu-
lar object to be accomplished by the
act whether it will be held consti-
tutional or unconstitutional. So in
Tevine v. Commissioners of Cook
Co., 84 Ill. 590, such a law which
Could only apply to Cook county was
held unconstitutional; while in Ohio
an act relating to the city of Cin-
cinnati was held to be a special act,
but other considerations excepted
it from the constitutional defect.
There is no general rule which can
guide in such cases. The special pro-
visions of the constitution, the terms
and objects of the act, must be re-
garded. Cincinnati v. Steinkamp, 54
Ohio St. 284.
3 People v. Hurlbut, 24 Mich. 44–57;
Breeswick v. City of Brunswick, 51
Ga. 639; Williamson v. Keokuk, 44
Iowa, 88.
CHAPTER XXIII.
STATE EXECUTIVE.
SEC. 412. Constitution a grant of eacecutive and judicial power.
The executive power of the various states of the Union is ex-
ercised in much the same form and on the same principles.
Unlike the legislative power of the state, the power of the
executive must be traced to the constitution, and in the same
manner that the aggregate powers of the United States are to
be so supported; and, as we have seen, so far as the executive
and judicial departments are concerned, the constitution of a
state is regarded as a grant of power.
In some of the states, and in the older unwritten constitu-
tions, the whole power—legislative, executive and judicial —
was in the legislature with no separation;' but in more recent
times the constitutions of the different states contain a grant
of the executive power to the governor, with the injunction
that he shall see that the laws of the state are exccuted, in
much the same form that the grant is made to the president of
the United States. Still later, the tendency has been to sepa-
rate the executive into departments created by the constitution.
1 When the first republican consti-
tution of North Carolina was framed
at Halifax in 1776, a large element
viewed with distrust the then un-
tried experiment of a government of
the people by themselves. As a con-
sequence the whole government was
vested in a legislature, to whose Sup-
posed superior wisdom was confided
the selection of the entire executive
and judicial departments; and, as a
further check, one branch of the leg-
islature was chosen, not by the peo-
ple at large, but by those possessed
of a certain almount of landed prop-
erty. With the progress of ideas the
Constitution of 1835 intrusted the se-
lection of the governor to the people.
A subsequent amendment gave the
Senate to a popular Zvote. The con-
stitution of 1868 gave the direct elec-
tion of the judiciary and the heads
of the several executive departments
to the people without the interme-
diary of a legislative selection, and
made the three departments of gov-
ernment co-ordinate, but independ-
ent of each other. Each of the three
is now equally based upon the broad
basis of the popular will. Herndon
v. Imperial Fire Ins. Co., 111 N. C.
384. In Connecticut prior to the
revolution the legislature exercised
all the powers of government and
elected the governor. State v. Bulke-
ley, 61 Conn. 287.
478 STATE EXECUTIVE.
[S413.
The unity of the executive powers in the single hand of the
governor was in the early days of the states practical and ex-
pedient; but as the population increased and the magnitude of
the affairs of the state grew and became more complex, it was
found necessary to commit different departments of the state
executive to different hands.
This was accomplished in the manner pointed out in the
constitution of Illinois, which finds its counterpart in most of
the states of the Union."
There are now subordinate boards of public works, state
boards of equalization, state boards of health, police and fire de-
partments, boards of public parks, commissioners of the insane,
boards for pardoning and managing criminals, and the state
systems have become complex and elaborate. g
Legal questions arising are frequent and most difficult, owing
to the growing tendency on the part of the legislature and the
executive to commit to the hands of these boards complete
power over subjects, granting them powers scarcely distin-
guishable from judicial power, by which valuable wested rights
of the people to local government are frequently affected and
divested.”
Under our imperfect separation of the legislative, executive,
and judicial departments, it is easy to understand the nicety
of questions arising under such distribution of power.
SEC. 413. The Governor.—In the case of Chisholm v. Georgia,
Justice Iredell, speaking of the nature of the chief executive of
a state, said: “A governor of a state is a mere executive officer;
his general authority very narrowly limited by the constitu-
1 The first constitution of Illinois,
article III, section 1, provided simply
that the executive power of the
state shall be vested in a governor.
At the same time the office of lieu-
tenant-governor was created, with
powers similar to those of the vice-
president, constituting him speaker
Of the Senate, and governor during
the absence of the governor, or in
case of death or removal of that offi-
Cer. In the last constitution it is
provided: “The executive depart-
ment shall consist of a governor, lieu-
tenant-governor, Secretary of state,
auditor of public accounts, treasurer,
superintendent of instruction, and
attorney-general, who shall each,
with the exception of the treasurer,
be elected by the people, and hold
his office for the term of four years.”
*In the exercise of such powers, if
upheld, the inhabitants of cities are
in fact governed by the state execu-
tive from the central seat of govern-
ment. See State v. Covington, 29
Ohio St. 102. Cf. People v. Albert-
son, 55 N. Y. 50; People v. Hurlbut,
24 Mich. 44; Rathbone v. Wirth
(N. Y.), 45 N. E. Rep. 15.
$ 413.] STATE EXECUTIVE. 479
tion of the state; with no undefined or disputable prerogatives;
without power to affect one shilling of the public money but as
he is authorized under the constitution or by a particular law;
having no color to represent the sovereignty of the state so as
to bind it in any manner to its prejudice, unless specially au-
thorized thereto. And therefore all who contract with him
do it at their own peril, and are bound to see (or take the con-
sequences of their own indiscretion) that he has strict author-
ity for any contract he makes.”
The analogies which might be supposed to exist between the
executive of the national government and the executives of
the states are not always safe and reliable.
His Corporate Capacity.—The governor of the state is, in the
eye of the law, viewed not simply in his natural capacity, but
partakes in some measure of the artificial character of a corpo-
ration sole. &
The supreme court of Tennessee said of the state executive:
“The governor of this state is the executive of it; it is one of
his duties, among many others, to see that the laws of the state
are executed and obeyed; this is a great and fundamental duty,
without the proper observance of which society might and
would necessarily be greatly distracted; and the proper Secu-
rity of life, liberty and property seriously endangered for the
purpose of enforcing the execution of the laws and the protec-
tion of the state from rebellion and invasion; he is the com-
mander of the forces of the state; to hold that there can be an
Žnterregnum in this office would be to hold to the temporary
anarchy of the state; and in order to hold that there is no such
Žnterregnum, we must hold that the governor as such never
dies; to do this he must be a corporation sole with succession
in Office.””
12 Dall. 418–446. This was, how-
ever, in 1792, and before he was
elected directly by the people.
Lieutenant-governor.—The lieuten-
ant-governor is, like the vice-presi-
dent, chosen to meet the contingency
of a vacancy in the office of governor,
either temporary or permanent; and
it is the habit of American governors,
upon leaving the state, to call the
lieutenant-governor to the seat of
government and intrust to him the
affairs of state.
2 Governor v. Allen & McMurdie, 8.
Humph. 176–181. “Blackstone, in
the first volume of his Commentaries
(p. 469), says: “A corporation Sole con-
sists of one person only, and his suc-
cessors in some particular station
who are incorporated by law in order
to give them. Some legal capacities
and advantages, particularly that of
480
[$ 414.
STATE EXECUTIVE.
J77s Influence on Legislation.— In accordance with the mod-
ern idea of checks and balances, the governor checks legisla-
tion not only by his veto power, which is qualified, but by a
provision, now commonly inserted in constitutions, providing
for his assent and signature to bills, or requiring a larger vote
in case of his disapproval."
SEC. 414. Power of Appointment and Removal.— The execu-
tive department of the state being largely within the control
Of the governor, he is given a large discretion in the matter of
perpetuity, which in their natural
persons they could not have had.”
In this view the king is a sole corpo-
ration, so is a bishop, and so is every
parson and vicar. -
“Now the governor constitutes
the executive department of the
state; he is vested by the constitution
of the state with great and impor-
tant powers to be executed for the
benefit of the state; and it is abso-
lutely necessary that there should be
no interregmum in his office, to avoid
many and great inconveniences; this
cannot be unless we apply to him
the maxim of the common law, ap-
plicable to the king, that he never
dies; this maxim of the common
law (like most if not all of them) is
based upon wise conceptions and not
upon any foolish reverence for kings
or belief in their sanctity or immu-
nity from the common lot of man-
kind, but upon the necessary assump-
tion that the state, which protects
and cares for all, never ceases to
exist, but that it is always alive and
active in the performance of its du-
ties to the citizen.” Governor v.
Allen & McMurdie, 8 Humph, 176–
180.
1 Article 4, section 14, of the Con-
stitution of Michigan, provides that
“Every bill and concurrent resolu-
tion, except of adjournment, passed
by the legislature shall be presented
to the governor before it become a
law. If he approve, he shall sign it;
but if not, he shall return it, with
his objections, to the house in which
it originated, which shall enter the
objections at large upon their journal
and reconsider it. On such recon-
sideration, if two-thirds of the mem-
bers elected agree to pass the bill, it
shall be sent with the objections to
the other house, by which it shall be
reconsidered. If approved by two-
thirds of the members elected to
that house, it shall become a law.
In such case the vote of both houses
shall be determined by yeas and
nays, and the names of the members
voting for and against the bill shall
be entered on the journals of each
house respectively. If any bill be
not returned by the governor within
ten days, Sundays excepted, after it
has been presented to him, the same
shall become a law in like manner
as if he had signed it, unless the leg-
islature, by their adjournment, pre-
vent its return, in which case it shall
not become a law. The governor
may approve, sign and file in the of
fice of the secretary of state, within
five days after the adjournment of
the legislature, any act passed dur-
ing the last five days of the ses-
Sion, and the same shall become a
law.” This must be construed as
rendering valid an act of the legisla-
ture passed previous to the last five
days of the Session and approved by
the governor after the adjournment
of the legislature. City of Detroit v.
Chapin, 108 Mich. 136.
§ 414.] STATE EXECUTIVE. 481
the appointment and removal of his subordinates, but this does
not extend to officers created by the constitution."
In combination with the legislature the power of the gov-
ernor is vast, and may even become threatening on account of
the practice which has grown up of creating general commis-
sions and boards, to whom are committed the control and man-
agement of certain objects of government, and also on the
more questionable practice of creating police, park, sewerage
and other local boards, to whom are committed to a large de-
gree the control and management of the government of the
people by officers created by the legislature and appointed by
the governor.”
In some instances the power to appoint is absolute, in others
by and with the advice of the legislature or of the senate; but
I “The disparity between the pow-
ers of the president and the governor
is not greater in reference to appoint-
ment to office than it is in reference
to their supervision and control of
the officers of the executive depart-
ment when appointed.
“The constitution of the United
States and of this state contain the
same declarations that the execu-
tive powers of the government shall
be vested in the respective execu-
tives; and in the constitution of the
first, this declaration is carried out
by its other provisions. It creates
no other officers in whom a portion
of this power is vested or required to
be vested by law. Those officers
whom the president may remove are
created by law, as aids and helps to
him in the performance of his duties;
but the declaration in our constitu-
tion, that the executive power of the
government shall be vested in the
governor, is to be understood in a
much more limited sense, inasmuch
as, by its other provisions, it is greatly
circumscribed and narrowed down.
|Unlike the constitution of the United
States, ours has created other execu-
tive officers, in whom a portion of
this power is required to be vested
by law, not to be assigned by the
governor. He can assign no du-
ties to the secretary. That idea is
negatived by the constitution re-
quiring all his duties, in addition to
such as it has prescribed, to be as-
signed by law. He is therefore the
officer of the constitution, and not
of the governor.” Field v. People, 2
Scam. 79–114.
2 For example, we have a board of
pardons, who pass upon how long a
convict shall remain in the peniten-
tiary (Miller v. State, 40 IL. R. A. 109),
state boards of health (France v.
State, 57 Ohio St. 1), civil service
commissioners, who shall determine
who may hold office (People v. Kip-
ley, 171 Ill. 44), park commissioners, to
govern local parks, but who are held
to be general state officers (Wilcox v.
People, 90 Ill. 186). The decision of
contested elections may be vested in
the executive department, or the ex-
ecutive in combination with the ju-
diciary, but the judge who sits in
this capacity exercises an executive
function rather than the judicial
(Johnson v. Jackson, 99 Ga. 389);
grain inspectors (Dutcher v. People,
11 Ill. App. 312); police boards con-
trolling districts embracing several
cities. People v. Albertson, 55 N. Y.
50. -
31 -
482 - STATE EXECUTIVE. - [$ 415.
in either event the vast power of the executive is apparent.
His power of removal and suspension, unless restrained by the
legislature, is absolute, and cannot be reviewed in the courts or
by any other tribunal." -
SEC. 415. The Governor’s Discretion.—It is essential to the
proper administration of his office that the governor should be
invested with a large measure of discretionary powers in mat-
ters pertaining to his office; and in such matters he is not ac-
countable to any other tribunal or any other person, excepting
for malfeasance in his office.”
So, in matters of contract which it is within his power to
execute, matters of sale and management of public property
and public office, and the expenditure of the public moneys
committed to the executive department, he is not accountable.”
In the exercise of his political duties his power is absolute
and beyond the control of the courts.” -
Power to pardon is discretionary with the governor, and it
follows that, irrespective of motive, there is no authority to
correct the abuse of this power except by impeachment.
So where the governor has entered into a contract in refer-
ence to a subject committed to his control, the judiciary cannot
inquire into the exercise of his discretion or relieve on account,
of his abuse.”
In all cases it may be said that the court will only inquire
into the power and jurisdiction of the governor, and not into
the wisdom or justice of its execution.” - -
As to ministerial acts, however, as is said by Mechem in his
work on Public Officers: “There is a growing tendency on the
part of the courts in other states to hold that where the duty
of performing purely ministerial acts, in which private indi-
viduals have a special interest, is positively imposed upon the
governor of a state by law, the performance of the duty may
be enforced by mandamus as in other 'cases of ministerial
action.” " - -
I State v. Johnson, 30 Fla. 499; 8 State v. Boyd, 36 Neb. 60; Holmes,
Wilcox v. People, 90 Ill. 186; State v. Tenn. C. & I. Ry., 49 La. Ann.
v. Doherty, 25 La. Ann. 119; Attor- 1465.
ney-General v. Brown, 1 Wis. 513; 4 State v. Boyd, supra.
Keene v. Perry, 24 Tex. 253. 5 Peeples v. Byrd, 98 Ga. 688.
2 People v. Yates, 40 Ill. 126; People 6 Wilcox v. People, 90 Ill. 186.
v. Lewis, 7 Johns. 73. 7 Mechem on Public Officers, sec.
§§ 416–418.] STATE EXECUTIVE. 483
SEC. 416. Secretary of State.—The great recording and ac-
counting officer of the state is the secretary. He is the keeper
of the documents of state; bills enacted by the legislature pass
through his hands, are enrolled by him, published by his author-
ity, and his certificate passes as evidence of their genuineness.
Commissions, whether by appointment of the state or by
election or choice of the legislature, are executed by him. He
is the keeper of the great seal of the state. He certifies the
incorporation of all companies, the granting of all charters and
changes in them.
|His duties are defined in the constitution and in the statutes
passed by the legislature.
SEO. 417. The State Auditor is the chief accounting officer,
naturally subordinate or ancillary to the secretary of state, and
it is his principal duty to investigate the genuineness and va-
lidity and justness of accounts presented against the state and
to issue warrants for their payment." Other duties may be
attached to the office by the constitution or the statutes, gen-
erally to report to the governor or attorney-general violations
of the rights of the state. For instance, in Illinois, matters
pertaining to insurance companies are committed to the care
of the state auditor.” .
In matters of this kind there is no uniform law. It depends
entirely upon the provisions of the constitution, or legislative
enactments which suit the convenience or desires of the legis-
lature. - –
SEC. 418. Superintendent of Public Instruction or Educa-
tion.—Wherever the common School system of education has
been in vogue, great attention has been paid to the subject of
610, with citations. The neglect of have occurred, nevertheless, unless
his duties may defeat the will of the
people or the legislature. Provision
is made in the constitution for the
authentication of bills; and although
it is customary that a bill have the
approval of the governor, its omission
has no effect on its validity. See Peo-
ple v. Hatch, 19111.283. In the case of
Wabash Ry. Co. v. Hughes, 38 Ill. 174,
it was held that, notwithstanding the
other conditions essential under the
constitution to make it a law may
the passage of the act has been authen-
ticated in such a manner as the consti-
tution authorizes the courts to recog-
nize, they cannot regard it as law for
want of sufficient authentication.
On account of a similar Omission the
prohibition amendment to the con-
stitution of Iowa was defeated. Koeh-
ler v. Hill, 60 Iowa, 543.
1 People v. Swigert, 107 Ill. 494.
*See Chicago Mut. Life Ass’n v.
Hunt, 127 Ill., 257.
484 STATE EXECUTIVE. [$419.
education, and in several of the states a public officer has been
elected by the people, whose duty it is to have the oversight of
the educational institutions of the state, particularly the com-
mon schools, and to see that the county superintendents of
schools perform their duties. In fact the idea seems to be to
systematize and render as efficient as possible the conduct of the
schools, in order that they may attain that efficiency and method
which entitle them to be called a system of education.
SEo. 419. Attorney-General.-Scarcely less important in the
executive department of the state than the governor is the at-
torney-general. He is the great law officer of the state.
An extract from a report of the attorney-general of Illinois
will perhaps best convey an idea of the importance of this high
Office: 1
“The duties imposed by law on the attorney-general of this
state are many and varied. Our laws” specifically point out
many of the duties and powers devolving upon him; but the
duties imposed by said chapter are few, in comparison with the
many additional duties that are imposed upon him by almost
every enactment of the legislature. The laws relating to the
business of insurance in this state, in relation to building and
loan associations, in relation to state banks, in relation to trusts
and every species of corporations Organized under our laws,
impose, in one way or another, grave and important duties and
trusts to be discharged by him.
“Nor is this all; for it has been expressly decided by the
supreme court that the attorney-general of Illinois possesses all
the powers of the attorney-general in England, and, in so de-
ciding, our supreme court used the following significant lan-
guage: ‘The duties of such an office are so numerous and
varied that it has not been the policy of the legislature to at-
tempt the difficult task of enumerating them exclusively, but
they have ordinarily been content, after expressly defining such
as they deem the most important, to leave the residue as they
exist at common law, so far as applicable to our jurisprudence
and system of government.’” wº
Practically speaking, even more than that of the chief execu-
tive himself is it the duty of the attorney-general to watch
1 These observations are equally 2 Ch. XIV, R. S. Ill.
applicable to all the states. 8 Rep. Atty. Gen. Ill., 1895.
§ 419.] STATE EXECUTIVE. 485
over and protect the constitution of the state from encroach-
ments by the government and violation by the people. §
The numerous cases in the state courts entitled State ea rel.
Q). are the mediums through which the attorney-general
attacks offenders against the constitution.
Gerrymandering, by which the legislature or some dominant
party therein seeks to unlawfully perpetuate its power and de-
stroy the true principles of representation, may be checked by
the attorney-general; great combinations and monopolies, by
which the private and property rights of the citizen are de-
stroyed, are restrained by the same law officer. -
The abuse of corporate franchises and forfeitures therefor
are within his jurisdiction;” and so through the varied and
numerous processes of the law the attorney-general has the
power, and it is his duty, to protect the state; and it is a matter
of congratulation to the American people that the sense of high
professional ethics existing among the members of that profes-
sion from which the attorney-general is chosen, which Out-
weighs further consideration, has generally rendered the attor-
ney-general of the state an officer who executes the law with-
out fear or favor.
1 The attorney-general may, with-
out any relator, challenge the right
of a public office to perform an act of
a public political nature. Such was
the Wisconsin case which held the
apportionment act void. State ex rel.
Atty. Gen. v. Cunningham, 81 Wis.
440. If he refuse, then a private
citizen may invoke the jurisdiction.
State ex rel. Lamb v. Cunningham,
83 Wis. 90. “That such prerogative
writs, including injunction as a
quasi-prerogative writ, can properly
issue only at the Suit of the state or
the attorney-general in the right of
the state; that “in matters strictly
publici juris, in which no one citizen
has any right or interest other than
that which is common to citizens in
general, a petition by a private per-
son for leave to commence an action
in this court in the name of the state
cannot properly be considered until
the attorney-general has been re-
quested to move in the matter, and
has refused or unreasonably delayed
to do so; ” that in all cases in which
an exercise of such original jurisdic-
tion is sought, whether by such pri-
vate citizen or the attorney-general,
leave must first be obtained from
this court upon a prima facie show-
ing that the case is one calling for
the exercise of such jurisdiction.”
Id. 121.
*The great Pullman Company was
checked in its growth as a municipal
corporation by this process, and it was
compelled to sell all the town of Pull-
man. People v. Pullman Palace Car
Co., 175 Ill. 125. The charter of the
N. R. S. Ref. Co. was revoked because
of its abuse of its power by entering
into a trust. People v. N. R. S. Ref.
Co., 121 N. Y. 582; 18 Am. St. Rep.
834. See also Chicago Mut. Ben. Ins.
Ass’n v. Hunt, 127 Ill. 257.
CHAPTER XXIV.
LOCAL SELF GOVERNMENT—PUBLIC CORPORATIONS.
SEC. 420. The Subject Explained.—Having examined the
principles and outlines of the administration of the general
government and the general state officers, the natural order is
to direct attention to the lesser subdivisions of the states which
are made for the administration and government of the local
concerns of the people and to enable them to participate in the
choice of state officers. - -
The subject is sometimes treated under the general designa-
tion of “municipal corporations,” and sometimes under that
of “public corporations,” and a large portion of the subject
consists of the law pertaining to public officers."
There seems to be no real confusion in the treatment or con-
ception of the distinctions between municipal corporations,
properly so called, and the local subdivisions of the states not
incorporated, which are treated under these heads; but the
practice of segregating subjects which overlap each other has
left something unexplained as to the real nature and relation
of these different subordinate instrumentalities created by the
state for the government of the people and which constitute
the instruments of local self-government.
We have thus far designated the United States and also the
states as a “person,” that is, in the eye of the law as bodies
politic, differing from the whole mass of persons in the addi-
tional element of organization and personality; but they have
not been regarded as corporations, though Occasionally men-
tioned as bodies politic and corporate; nor can they in any
proper sense of the word “corporation,” as used in English and
1 Thus Elliott, in his Elements of
Public Corporations, includes within
that title the county, township,
school district, and the American
municipality. Dillon in bounding
his subject states that the term
“municipal Corporation * has refer-
ence to incorporated villages, towns
and cities, as distinguished from
other public corporations, such as
counties and quasi-corporations. 1
Dill. Mun. Corp. 10. See Mechem,
Public Officers. -
§ 421.] LOCAL SELF-GOVERNMENT—PUBLIC CORPORATIONS. 487
American law, be so designated, for the reason that they are
original sovereign bodies, while corporations derive their exist-
ence from the creative power of the state.
The local subdivision of the state into counties, townships,
willages, school districts, and lesser divisions into which the
territory is divided, are often spoken of as municipal or quasi-
corporations; but in a strict and proper sense, counties and
towns differ essentially from and are clearly distinguishable
from corporations, properly so termed."
Before the scheme of local self-government or the nature of
public quasi-corporations and their distinction from municipal
corporations proper, and the difference between these and pri-
vate corporations, can be understood, the fundamental princi-
ples underlying the subject must be grasped; and it will be our
first endeavor to make these principles clear.
SEC. 421. Local Subdivision of England.—The antiquity and
history of corporations belong rather to the historian than to
the author of a legal treatise. A better reason for not enter-
ing upon an extended investigation of the Origin of corpora-
tions is found in the fact that the English law as it existed at
the period of the American Revolution throws but little light
upon American quasi-corporations,” while the so-called corpora-
1 Stermer v. Board of Com., 5 Colo. tion of the city of London. Even the
App. 398. The pure corporation has
a charter and is really incorporated
and possesses a franchise, whereas
the local subdivisions merely exist
at the legislative pleasure, Subject to
constitutional limitations. .
That the inhabitants of a county,
a hundred, a town or parish were not
considered a corporation appears
from the language of Mr. Kyd, who
says: “One essential characteristic of
a corporation is an indefinite dura-
tion, but this is not peculiar
to corporations; other aggregate
hodies of men are capable of the same
perpetual continuance, and for the
same natural and intrinsic reason.
Thus the inhabitants of a county, of
a hundred, of a manor, of a parish, or
of a town not corporate like Birming-
ham or Manchester, have perpetual
succession as much as the corpora-
voluntary association of private in-
dividuals for any of the most trifling
purposes is capable of perpetual suc-
cession. 1 Kyd on Corp., Int., p. 3
(1794). It is not necessary to incor-
porate a collective body of men in
Order to confer upon them peculiar
privileges. 1 Kyd, Int., 9.
“In M’Kinnon v. Penson, 8 Exch.
319, in the court of exchequer, Pol-
lock, C. B., said that the only reason
why the action would not lie in Rus-
sell v. Men of Devon, 2 T. R. 667, was
because the inhabitants of a County
were not a corporation and could not
be sued.” Hill v. Boston, 122 Mass. 361.
2 Few if any English corporations
were like our towns. Eustis v. Par-
ker, 1 N. H. 276. See argument of
Pinkney, J., in McCulloch v. Mary-
land, 4 Wheat. 383; also Paul v. Vir-
ginia, 8 Wall. 168. Corporations in
488 LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. [$421.
tion of mediaeval and ancient history will be found upon in-
vestigation not to have the characteristics of our modern cor-
porations.
Corporations existed and were recognized under the laws of
the American colonies before the Revolution and during the
period of the old confederacy, and they have always existed
in the United States.
A brief reference to the local temporal division of England
in the eighteenth century may aid somewhat in grasping the
same subject in American law. (It will not be necessary to
notice the ecclesiastical subdivision of Great Britain.)
England, says Wood in his Institutes (1722), is divided into
several counties, every county into hundreds, every hundred
into towns and villages. A county or shire (the two are the
same) is a certain circuit or part of the kingdom governed by
the sheriff. There are three counties palatine (that is, having
certain privileges of local government and certain franchises) —
Lancaster, Chester and Durham. Some cities and towns cor-
porate are counties; of these the famous city of London is
one – York, Chester, Canterbury, Norwich, Worcester, King-
ston-upon-Hull, etc. A town was a precinct anciently contain-
ing ten families, upon which account they are sometimes called
“tithings.” It cannot be a town in law unless it hath or had
a church, celebration of divine service, sacraments and burial.
Under the name of town or village, boroughs and cities are
contained, for every borough or city is a town, though every
town is not a borough or city. A borough is so called because
it sendeth up burgesses to parliament," and this maketh the
difference between a village or town and a borough. Some
boroughs are corporate and some not corporate. In old time.
the towns that are now called cities, or cities and counties,
were boroughs, and the ancient boroughs were first of all towns.
A city is a corporate borough that hath had or at present
hath a bishop, for if the bishopric is dissolved, yet the city re
maineth. To have suburbs proveth it to be a city. Some cities.
are also counties, as before mentioned.”
England, as in fact all personal privi- 1 A privilege or duty conferred by
leges and honors, were created by the sovereign. See Webster's argu-
the king's royal charter, until the ment in Luther v. Borden, 7 How. 1.
limitation of the king’s prerogative. 2 Wood’s Institutes, 2–4,
For the history of corporations, see
FCent's Comm., vol. 2, lecture 33, 269.
§ 421.] LOCAL SELF-GOVERNMENT — PUBLIC CORPORATIONs. 489
The important points to be observed in this description are,
first, the distinctions between particular counties called coun-
ties palatine, and the Ordinary counties, and the distinction be-
tween cities, properly so called, and towns; the distinction not
being in the fact that one contained a larger number of inhab-
itants than the other, but that the incorporation of the town
constituted it a city, while the counties palatine had special
privileges of local self-government.
It should also be observed that the subdivisions less than the
counties were not arbitrarily fixed by territorial lines in the
first instance, but the boundaries were fixed by the number of
inhabitants. Thus, the hundreds were so called because there
was a jurisdiction for ten tithings or a hundred families dwell-
ing in some neighboring towns."
The same author treats of corporations or bodies politic in
an entirely different connection.” He says of corporations or
bodies politic: What is a corporation ? “A corporation is a
person * in a political capacity created by law, and is a body-
politic framed by policy or fiction of law, but to endure in
perpetual succession. . . . It differs from a franchise or
liberty “ because they are estates of inheritance and may be
granted over from one to another.”
As instances of sole corporations he mentions the king, a
bishop, and the chamberlain of London; aggregate corpora-
tions of many persons together (in the civil law called univer-
sities or colleges), as mayor and commonalty, dean and chapter,
master and fellows of the college, master and brethren of a
hospital, where all persons may be capable, or one person only.
“The bodies natural of such a corporation may be seen, yet.
the body politic or corporate itself cannot be seen, nor do any
act but by attorney.”
A city or borough may be incorporated, or part of the city
or borough, as the freemen of the city or burgesses of the bor-
ough, or men of such a trade in a city; hence there may be
many corporations in one city or borough, and one corporation
may be made out of another corporation."
From what has been said it is apparent that there was no
1 Wood’s Institutes, Int., 3. 4 Granted to individuals,
2 Ch. VIII, p. 111. 5 Wood's Institutes, 112.
3 Mark the expression, 6 Id,
490 [$421.
LOCAL SELF-GOVERNMENT — PUBLIC CORPORATIONS.
idea that the local subdivisions of England were in any sense
considered corporations." We frequently speak of counties and
townships as involuntary corporations, but, according to the
English View, there could be no such thing as an involun-
tary corporation. Thus, in Brownlow's Reports, 100, it is said
that the inhabitants of a town cannot be incorporated without
the consent of the major part of them, and an incorporation
without their consent is void. In another case,” Holt, Jus-
tice, speaks of a new charter made to the city of Norwich by
JHenry IV. and affirmed by Charles II. The new charter would
be void if the corporation refused it.”
It is plain from some observations of Mr. Kyd" that the in-
habitants of a county, hundred, town or parish were not con-
sidered a corporation. Thus, he says the inhabitants of a county,
of a hundred, of a manor, of a parish, or of a town not corpo-
rate, like Birmingham or Manchester, have perpetual succes-
sion, as much as the corporation of the city of London, arguing
that perpetual succession was possessed by aggregations other
than corporations.”
From what has been written it is apparent that the local
subdivisions of England were not corporations, while nowadays
it is very common to classify these local subdivisions as quasi-
corporations, and sometimes they are even called municipal
corporations."
People v. Purdy, 2 Hill, 41.
2 Rex v. Larwood, Comberbach’s
they are only quasi-corporations.
They are not those artificial persons
Rep. 316.
3 The consent of inhabitants of bor-
oughs was necessary to make them
corporations. Rutter v. Chapman, 8
M. & W. 36; 7 Eng. Rul. Cas, 179.
These authorities are cited by Parker,
C. J., to show that a township was
not properly a corporation. Ellis v.
Marshall, 2 Mass. 277.
4 Kyd on Corporations was pub-
jished the same year with Wood's
Institutes (1722).
5.1 Kyd, Corp., Int., p. 3.
6 People v. Purdy, 2 Hill, 41. Bron-
son, J., in this case says: “Although
towns and counties have certain ca-
pacities as or like a body corporate,
which either lawyers or laymen call
corporations. The trustees of gospel
and school lots, and the superintend-
ent of the poor, are also spoken of
as corporations (1 IR. S. 498); but al-
though they have certain corporate
Capacities, they are not corporations
in the proper sense of the term. They
have some of the attributes of a cor-
poration.”
Corporate power is the point of
inquiry in all cases. As to the nature
of the power involved, see opinion of
Cowen, J., in Same case, page 43.
As to incorporated town, see Peo-
ple v. Haney, 142 Ill. 573.
§ 422.] LOCAL SELF-Gov.ERNMENT— PUBLIC CORPORATIONS. 491
Another source of confusion is the designation sometimes
made in statutes, resulting from loose and inaccurate use of
language, the meaning of which can only be ascertained by
making a very free construction by the judicial power, so that
a school district will in some instances be called a municipal
corporation, although in no sense possessing any of the features
of such a body. It is essential to our method of treatment,
and to a clear comprehension of the distinguishing features of
these bodies which pass under the name of corporations or
guasi-corporations, that we obtain a clear notion of the dis-
tinguishing features of each.
SEC. 422. Definitions of Corporations.—What idea is con-
veyed in juridical language by the word “corporation ?” How
does a corporation sole differ from an individual? How does
a corporation aggregate differ from a voluntary association of
several individuals who issue shares and do business as a joint-
stock association? How does a corporation or a joint associa-
tion differ from a partnership, and what is the reason for the
designation of one aggregation of individuals as a corporation
and another as a quasi-corporation. A close investigation of
these matters, it is believed, will facilitate very greatly the
understanding not only of the distinctions involved, but of the
rights and liabilities of the various bodies.
There is no lack of attempts at definition. Says Bouvier:
“A corporation is a body consisting of one or more persons
1 It must not be expected that a
uniform designation will be found
running through all the various en-
actments of the different legislatures;
whether a township is held to be a
municipal Corporation within the
purview of a statute may often de-
pend upon the context and surround-
ings, and so these legislative designa-
tions constitute but little guide as to
the nature of the association. Norton
v. Bank, 3 Wis. 714; Stermer v. Board,
5 Colo. App. 379; Rathbone v. Hopper,
57 Kan. 240; 34 L. R. A. 674.
If it has the attributes of a corpo-
ration, whether the statute calls it
One or not, it is a corporation; if it
has not these attributes it is no corpo-
ration. Thomas v. Dakin, 22 Wend, 9.
“In Fargo, Pres’t U. S. Exp. Co., v.
L., N. A. & C. Ry. Co., 6 Fed. Rep. 787,
Judge Gresham said: ‘It is of no con-
sequence that in the statute under
which these companies are organized
they are called unincorporated asso-
ciations. In determining what such
institutions really are, regard is to
be had to their essential attributes
rather than to any mere name by
which they may be known. If the
essential franchises of a Corporation
are conferred upon a joint-stock com-
pany, it is none the less a corporation
for being called something else.’”
Margolius v. State of Ohio, 1 Ohio N.
P. 264; Folsom v. Township, 159 U. S.
611; 16 Sup. Ct. Rep. 174; Winspear
v. Dist. Tp. of Holman, 37 Iowa, 542.
492 Local SELF-goverNMENT—PUBLIC corporations. [S422.
established by law, usually for some specific purpose, and con-
tinued by a succession of members.”" - .
The same author, in his Institutes, says: “A corporation is
an intellectual body politic, created by law, composed of one
or more persons, who act under a common name, are endowed
with perpetual succession, and with various other powers by
its charter, or the law which created it, and which, for certain
purposes, is considered as a natural person.” This language
is followed by the expression: “It is, as is well observed by
Chief Justice Marshall, an artificial body, invisible, intangible,
and existing only in contemplation of law.” This definition,
coupled with the half-finished expression of Marshall, throws
less light and more confusion over the subject.” - -
The definition of Angell & Ames approaches nearer to a
description of a corporation, i.e.: “A body created by law,
composed of individuals united under a common name, the
members of which succeed each other, so that the body con-
tinues the same notwithstanding the change of individuals who
compose it, and is for certain purposes considered as a natural
person.”
This definition is calculated to mislead the uninitiated by
using the expression “a body created by law,” and concluding,
“as a natural person,” because it conflicts with a portion of the
accepted description of a corporation so often met with, namely,
that of Chief Justice Marshall, that a corporation is “an arti-
ficial being, invisible, intangible, and existing only in contem-
plation of law,” and it is untrue that, for any purpose, a corpo-
ration is considered as a natural person. It may have within
certain limits (in fact within all the limits which it can have
rights) the rights of natural persons.
As is well said by Walker, “Such expressions are calculated
to throw darkness rather than light over the actual nature of
corporations.”*
After what has heretofore been said of definitions the author
may be pardoned for not attempting an exact definition. How-
1 Manifestly this is no definition. Marshall’s words, and this is the near-
2 Bouvier’s Inst., sec. 178. est attempt at defining on the part
* Anderson quotes Mansfield’s state- of these eminent lexicographers.
ment under the title “Corporation: ” 4 Walker's American Law (5th ed.),
“A creature of the crown created 217.
by letters patent.” He also quotes
§ 423.] Local SELF-GOVERNMENT— PUBLIC CORPORATIONS. 493
ever, a conception of the nature of corporations must be con-
veyed by language, and a definition must be found or invented,
or language which constitutes a complete description must be
given. *.
SEC. 423. The Legal Idea of a Corporation.— Our classifica-
tion and treatment assumes that corporations are, in legal Con-
templation, persons, and clothed with capacity to act as a person
within certain limits. All the definitions agree upon this point,
and the legal conception of the word “person,” as heretofore
explained, is that of a legal entity, capable of having and own-
ing rights." -
Much of this confusion in reference to artificial creation and
personality is occasioned by the changing sense in which courts,
legislators and legal authors use the word “person.” Strictly
speaking, in legal contemplation there are no natural persons
(the expression embraces a solecism); for, as we have seen, the
word “person” or “personality” conveys the idea of capacity
Or status, which is an artificial attribute in which the law clothes
a natural being, or an aggregate of natural beings. “Unºus
Jomo sustºnet plures personas.””
Here again we encounter the same difficulty which so often
prevents exactness in juridical discourse, viz., the changing sense
in which words are used. “Such,” says Marshall, “is the char-
acter of human language that no word conveys to the mind,
Żn all situations, one single definite idea, and nothing is more
common than to use words in a figurative sense. Almost all
compositions contain words which, taken in their rigorous sense,
would convey a meaning different from that which is obvi-
ously intended.”” .-
1 Judge Sharswood, who is gener-
ally a model of exact statement, says
the object of making a corporation
was to give it a legal entity, a “per-
soma standi in judicio.” Philadelphia
v. Fox, 64 Pa. St. 180. See Old Dict.
by F. O. 1701. Personable: One who
may maintain a plea in a court, gui
habet personam standi in judicio.
“The great object of an incorpora-
tion is to bestow the character and
properties of individuality on a col-
lective and changing body of men.
This capacity is always given to such
a body. Any privileges which may
exempt it from the burthens common
to individuals do not flow necessa-
rily from the charter, but must be
expressed in it, or they do not exist.”
Providence Bank v. Billings, 4 Pet.
514, 562; Cutshaw v. Fargo, 8 Ind.
App. 691. See also S. P. Ry. Co. v.
Orton, 6 Sawy. 187; 32 Fed. Rep. 458.
2 Austin’s Jur. 362.
* McCulloch v. Maryland, 4 Wheat.
414.
494 LoCAL SELF-GovKRNMENT— PUBLIC CORPORATIONS. [$ 423.
If we could by common consent never use the word “per-
son’’ in any other sense than as indicating the capacity or
status which the law conferred, and should designate what we
now frequently call “natural persons” as “individuals,” we
would escape much unnecessary confusion."
Walker says: “A corporation may be defined to be a body
of persons, connected together by law, either contemporane-
ously or in succession, and endowed with the capacity of act-
ing for various purposes as a single person.”
Again: “It is sufficient to conceive of them as consisting of
natural persons, united together in an artificial character by
the force of law,” for the purpose of concentrating or perpetu-
ating individual ability. They are purely creatures of the law;
because, though the members may voluntarily form themselves
into a society or association, the law only can erect them into
a corporation.””
This definition is also inaccurate, and to the untaught very
confusing, for the reason that a pure corporation is never con-
stituted by force of law, but is always voluntary. A common
fault with all of the definitions thus far quoted is that they
throw out of view the idea that a corporation may be consti-
tuted by law out of either natural persons or artificial persons,
or a mixture of both.
Mr. Justice Buchanan in a celebrated case says: “It is suf-
ficient to say of a corporation aggregate, of which various
definitions are to be found in the books, some fanciful and
metaphysical, that it is an artificial, intellectual being, the
mere creature of the law, composed generally of natural per-
sons in their natural capacity. It may also be composed of
persons in their political capacity, of members of other corpo-
rations, as in the case of Christ's Hospital of Bridewell, char-
tered by Edward VI., of which the mayor, citizens and common-
alty of London are made the governors of the Hospital of
Ldward VI. of England, of Christ Bridewell; and so in the
case of the universities of Oxford and Cambridge, of which the
many colleges (distinct and separate corporations) within these
1 Austin’s Jur. 362, 363. agreement, and the law merely gives
* This ignores the fact, which al- it the artificial capacity.
ways exists, that the body is first 3 Walker's American Law (5th ed.),
united and constituted by mutual 216, 217.
§ 423.] LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. 495
universities form component parts of these larger corporations.
And the individuals, or any of them, who, in their natural ca-
pacity, compose one corporation, may in the same capacity com-
pose another distinct and separate corporation; as the president
and directors of one bank, or any number of them, may be the
president and directors of another bank, or the incorporated
managers of any other institution. These undeniable proposi-
tions, kept in view, will assist in the examination of the ques-
tions under consideration. e
“The corporations of London and of Christ's Hospital of
Bridewell are separately existing corporations, although the
mayor, citizens and commonalty of London are incorporated by
the name of the governors, etc., of the Hospital, etc., of Christ,
etc., Bridewell; so the many colleges within the universities of
Oxford and Cambridge are separate and distinct corporations
from each other and from the larger corporations of those re-
spective institutions.”
These observations of the learned judge add to the definitions
which we have thus far considered, the idea that a corpora-
tion may be composed of an aggregation of several corpora-
tions; and if these similar corporations are intangible and exist
only in contemplation of law, it is plain that the definitions are,
in fact, no definitions. -
Chancellor Kent defines a corporation to be “a franchise pos-
sessed by one or more individuals who subsist as a body politic
under a special denomination, and are vested by the policy of
the law with the capacity of perpetual succession and of acting
in several respects, however numerous the members of the asso-
ciation may be, as a single individual.”*
By this definition a new element is brought in, viz.: that a
corporation is a franchise possessed by one or more individuals.
He says of Chief Justice Marshall’s language, that a corpora-
tion is immortal as well as invisible and intangible, but the
immortality of a corporation means only its capacity to take in
perpetual succession so long as the corporation exists. So far
from being immortal, it is well known that most of the corpo-
rations recently created by statute are limited in duration to a
few years.
1 Regents of University of Mary- 22 Kent's Com. 295.
land v. Williams, 9 G. & J. (Md., 1838),
365, 393, 395; 31 Am. Dec. 83.
496 LoCAL SELF-GovERNMENT— PUBLIC CORPORATIONS. [$423,
|
Is then the franchise, in legal contemplation, the corporation,
or is the body the corporation? It must be borne in mind that
language is now being used in a technical legal sense, irrespect-
ive of what in popular idiom it may mean. Generally, horses
and chattels and land are spoken of as property; and while such
Ause of these words is accurate enough for ordinary conversa-
tion, it is altogether too loose and indefinite for the purpose of
exact legal expression.
Strictly speaking, the chattel or the land is not property, but
the right and interest which one has in and to the land or chat-
tel is property."
So Marshall, in his argument in a celebrated case, says:
“Property is the creature of civil society.” He says from the
bench " that a corporation is the mere creation of the law.
If we would comprehend the real nature of corporations, we
must use language with perfect exactness. The whole idea
of personality, whether applied to a single individual or an ag-
gregation of individuals, is in a certain sense a legal fiction by
which the individual or the aggregation is clothed with certain
capacities.*
Judge Sharswood observes, in his opinion in a celebrated
case, that the object of making it (the city) a body politic is
giving it a legal entity, a name and seal by which to act in
solemn form, a capacity to contract and be contracted with, to
I Wynehamer v. People, 13 N. Y.
278.
2 Ware v. Hylton, 3 Dall. 199.
3 Trustees v. Woodward, 4. Wheat.
316. -
4 People v. N. R. S. Ref. Co., 121
N. Y. 619. The abstract idea of a
corporation, the legal entity, the im-
palpable and intangible creation of
human thought, is itself a fiction,
and has been appropriately described
as a figure of speech. It serves very
well to designate in our minds the
collective action and agency of many
individuals, as permitted by the law;
and the substantial inquiry always
is, what in a given case has been that
collective action and agency. As be-
tween the corporation and those
with whom it deals, the manner of
its exercise usually is material; but
as between it and the state, the sub-
stantial inquiry is only what that
collective action and agency has
done; what it has in fact accom-
plished; what is seen to be its effect-
ive work; what has been its conduct.
It ought not to be otherwise. The
state gave the franchise, the charter,
not to the impalpable and almost
nebulous fiction of our thought, but
to the corporators, the individuals,
the acting and living men, to be used
by them, to redound to their benefit,
to strengthen their hands and add
energy to their capital. If it is taken
away, it is taken from them as in-
dividuals and corporators, and the
legal fiction disappears. People v.
N. R. S. Ref. Co., 121 N. Y. 622.
§ 424.] LoCAL SELF-GOVERNMENT—PUBLIC CORPORATIONS. 497
sue and be sued, a persona stand; in judicio, to hold and dis-
pose of property, and thereby to acquire rights and incur re-
sponsibility." *
We may now see that the idea of a corporation is in legal
contemplation a franchise conferred upon either a natural
being or an artificial body already in existence,” which confers
upon it a capacity differing from its natural capacity.
SEC. 424. Meaning of “Franchise.”— The right to be a cor-
poration is generally called a franchise. The franchise which
is conferred upon the individual or association is the cloak or
mask conferred upon them, whereby they are hid from view,
become a single legal entity or personage, different in capacity
and character from a natural person.” The individuals are not
a corporation any more than chattels or land is property; but
the individuals, with the capacity of the law—that is, with
the franchise, become a new being endowed with a personas.
Thus, in the same sense in which the law creates property, the
law creates the corporation. That which is the subject of prop-
erty must exist by nature; that which constitutes the elements
of a corporation must exist by nature. The law clothes them
with an artificial aspect, or endows them with artificial capaci-
ties; and this is the legal conception of the franchise conferred
upon natural persons to be a corporation.*
The aggregation of men is constituted by their agreement,
but the corporate entity is created by the charter.”
The word “franchise,” so often used in the act and in the
deed, has various significations, both in a legal and popular
sense." A corporation is itself a franchise belonging to the
1 Philadelphia v. Fox, 64 Pa. St. 180. property and corporations are alike
2 That is, the body must be in exist- the creations of law. See Cutshaw
ence; the men incorporated must v. Fargo, 8 Ind. App. 691.
have been united by some sort of 5 See illustration in argument of
convention, and must accept the char- Osborn v. Bank, 9 Wheat. 791.
ter. Franklin Bridge Co. v. Wood, 14 6 “The word “franchise’ is often
Ga. 80. used in the sense of privileges gen-
3 People v. N. R. S. Ref. Co., 121 N. erally, but in its more appropriate
Y. 619; California v. Pacific Ry. Co., and legal sense the term is confined
127 U. S. 40, 41. to such rights and privileges as are
4. It is in this sense that Marshall conferred upon Corporate bodies by
*Ises the expression, a corporation is legislative grant. It is in the latter
intangible, invisible, and exists only sense alone the word is now to be
in contemplation of law; and to him considered. The franchise proposed
32 - -
498 LoCAL SELF-govKRNMENT—PUBLIC CORPORATIONs. [$424.
members of the corporation; and a corporation, being itself a.
franchise, may hold other franchises, as rights and franchises.
of the corporation. A municipal corporation, for instance,
may have the franchise of a market or of a local court; and
the different powers of a private corporation, like the right to
hold and dispose of property, are its franchises. In a more
popular sense, the political rights of subjects and citizens are
called franchises, like the electoral franchise."
A corporation, being itself a franchise, consists and is made
up of its rights and franchises; and when all its franchises are:
gone, by surrender, by forfeiture judicially ascertained, by lim-
itation of the grant, or in any other way, the corporation has
/
to be sold is a corporate franchise,
and the artificial body or political
entity to which it pertains is what is
known to the law as an aggregate
corporation. Such a corporation has
been well defined to be “an artificial
being created by law and composed
of individuals who subsist as a body.
politic under a special denomination,
with the capacity of perpetual suc-
cession, and of acting within the
scope of its charter as a natural per-
son.” Now, a franchise is nothing
more than the right or privilege of
being a corporation and of doing
such things, and such things Only,
as are authorized by the corpora-
tion’s charter. This right of a body
of men to be and act as an artificial
person without, as a general rule, in-
curring individual responsibility, is
declared by Blackstone to be “a royal
privilege or branch of the king's pre-
rogative, subsisting in the hands of
a subject.” (2 Blk. 37.) Such right
or franchise is defined by Bouvier to
be ‘a certain privilege conferred by
grant from government and vested
in individuals.” (1 Bouvier, 545.) Now
it is clear from these definitions, and
from the very nature of a corpora-
tion, that a franchise, or the right to
be and act as an artificial body, vests
in the individuals who compose the
Corporation and not in the corpora-
tion itself. This fact, we think, is
not without significance in reaching
a conclusion upon the main question.
to be determined, outside of the nu-
merous authorities bearing directly
On the subject.
“It will be kept in mind that the
corporate body, for purposes of own-
ership, and, indeed, for most pur-
poses, has a distinct identity from
that of the individual corporators.
The latter may be wealthy, when at
the same time the former is insolv-
ent, and vice versa. The corporation
has no right to appropriate, sell or
otherwise dispose of any of the prop-
erty or effects of a corporator. The
relation of debtor and creditor may
subsist between them in the same:
manner as between the company and
other persons. The company’s en-
tire property may be swept away
from it by sequestration or other
means, and yet its franchises will re-
main vested in the corporators until
they are either abandoned or for-
feited to the state. All these propo-
sitions are familiar to the courts and
the profession, and are well sustained
by authority.” Fietsam v. Hay, 122.
Ill. 293.
1 Com. Dig., Franchise, F. 1; Angell
& Ames on Corp. 3; The King v.
London, Skinner, 310, 311.
§ 425.] Local, SELF-GOVERNMENT— PUBLIC CORPORATIONS. 499
no longer any practical existence. If the franchise or fran-
chises are of a nature to continue after they are lost by the cor-
poration, they may be regranted to another corporation or to
other individuals; but the former corporation is substantially
dissolved." -
The franchise to be a corporation is one thing, and belongs
to the persons who compose the corporation; it clothes them
with a capacity of being an entity different, in the eye of the
law, from their natural and private capacity. The corporate
powers, sometimes called corporate franchises, are such powers
as vest in the corporate body. These two are quite distinct.”
The franchise to be a corporation cannot be sold, although by
a transfer of the shares of stock the franchises may pass to an
entirely new body of men; but the franchises still belong to the
same corporation.” The body has changed, but the corporation
has not. There has been no dissolution, succession or meta-
morphosis."
SEC. 425. The Attributes of a Corporation.— Before attempt-
ing to define a corporation it will be wise to describe some of
its constituent parts and characteristic attributes. In the first
place, a corporation always consists of one or more persons,
either natural or corporate; and if you call the individuals who
are aggregated into a corporation a “body,” then the body of
the corporation is tangible and must exist in fact. So true is
this, that the citizenship of the corporation was at one time
thought to be determinable by determining the citizenship of
its members.” But if the franchise, the artificial cloak, is the
corporation, then the corporation is intangible and exists only
in contemplation of law."
A corporation cannot exist without its members." Neither
is it true, in a universal sense, that all corporations are created
entirely by law; for the creation of all private and pure mu-
12 Kent's Comm. 305, and note a,
308 and 309; The King v. Passmore,
3 T. R. 199; Com. v. Hancock Bridge,
2 Gray, 23, 60; Pierce v. Emery, 32
N. H. 507; Warner v. Beers, 23 Wend.
172.
2S. P. Ry. Co. v. Orton, 6 Sawy. 157;
32 Fed. Rep. 458.
* Fietsam v. Hay, 122 Ill. 291–295.
4M. & L. R. Ry. Co. v. Commission-
ers, 112 U. S. 609–619.
5 Bank v. Earle, 13 Pet. 514. See
Const. Hist. Lect. Ann Arbor, 142.
For modern view, see G., H. & S. F.
Ry. Co. v. Gonzales, 151 U. S. 496.
6 McCulloch v. Maryland, 4 Wheat.
316.
72 Wilson, 271; Mayor v. Seaber, 3
Burr. 1867.
500 LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. [$425.
nicipal corporations requires the voluntary consent of the cor-
porators, individual members, or shareholders, to combine with
the consent of the legislative will. That is, the law-makers
cannot compel them to be a corporation, or confer the capacity
without the consent; but in another sense the capacity, the
franchise, is entirely the creature of law—a mere legal fiction.
As will more clearly appear, important consequences of right
and liability follow this distinction.
The distinguishing feature of a corporation is that the entity
or personality recognized by law is created by law. The indi-
vidual or individuals who compose or constitute the elements
of a corporation may be natural, in fact always are individuals.
But the legal entity known as the corporation is the mask or
persona juris thrown over them by the law, and which hides
the individual from the public view and protects him from
personal liability."
A corporation is a person; it is not a genus, but a species;
and is generally called an artificial person.”
Definition.—A corporation is a legal entity or juristic per-
son, which results from a personality being by the law con-
ferred upon one or more, by virtue of which they have a capac-
ity differing from their ordinary natural capacity,” or by virtue
of which many become as one with peculiar attributes.
A corporation is not merely a capacity, neither is it merely
a franchise. It is that which results from or grows Out of the
franchise, and which is by this franchise given a capacity dif-
fering from the natural capacity of the persons who constitute
its membership. The franchise is the means, the corporation
is the result. The corporate franchises are attributes conferred
not upon the individuals who constitute the members of the
corporation, but upon the legal entity.” It seems that there
are but three essential attributes — necessary attributes — to a
corporate being, viz.: First, to have perpetual succession, under
a given designation; second, the capacity to acquire rights and
assume obligations by this special denomination or name;
third, to possess the corporate franchises and rights and enjoy
1 Cutshaw v. Fargo, 8 Ind. App. 3 There are few, if any, private cor-
691. porations sole; if any, they are eccle-
2 Maltz v. American Exp. Co., 1 siastical.
f'lipp. 611; Beaston v. Farmers’ Bank, 4 Warner v. Beers, 23 Wend. 172.
12 Pet. 134.
§§ 426–7.] LOCAL SELF-GOVERNMENT—PUBLIC CORPORATIONS. 501,
them to the common interest of the corporators; to have per-
petual succession under this artificial form, so that the individu-
als composing the body may entirely change without changing
the identity of the corporation." { -
In most cases, many more privileges and franchises than
these essential ones are conferred upon corporations, but these
are not essential to corporate existence, because they are priv-
ileges which might in the same manner be conferred upon in-
dividuals; while corporate powers, strictly speaking, are attri-
butes or capacities essential to corporations, and which at the
same time could not be exercised by an individual.”
SEC. 426. Are Created by the State.—The capacity of being
a corporation can only be conferred by the state. It cannot be
assumed by individuals. By no form of agreement, without
this co-operation of law, can any number of persons become a
corporation, because it is not within the power of individuals
to change their personality.”
As we have noticed, and as we will examine more closely in
Other connections, pure corporations can only beincorporated by
consent. No man or body of men can be compelled to become
a corporation against his or their will; and for this reason it is
said that the act of incorporation or charter of a private corpora-
tion is a contract, and cannot be arbitrarily taken away. Such
capacity arises by mutual consent and operates as a contract.”
One of the most essential differences which exist between
pure corporations (whether public, municipal or private) and
public quasi-corporations is in the presence of this contract in
the One case and its absence in the other, and the consequent
control over the existence of the corporation in One case and
the limitation upon the power of the people or legislative au-
thority to arbitrarily, and without due process of law, take
away its corporate existence. -
SEC. 427. Classification of Corporations.— There have been
several classifications of corporations, but none which will per-
1 Warner v. Beers, 23 Wend. 174. -8 California v. Pacific Ry. Co., 127
*S. P. Ry. Co. v. Orton, 6 Sawy. 188. U. S. 1–40. A corporation is not
While all of the above are essential merely a capacity, it is an entity.
to corporations, it does not follow Warner v. Beers, 23 Wend. 173.
that one of these may not be pos- 4 M. & L. R. Ry. Co. v. Commission-
Sessed by others, i. e., perpetual suc- ers, 112 U. S. 614.
cession.
502 LOCAL SELF-GovKRNMENT— PUBLIC CORPORATIONs. [$427.
mit the arrangement of all of the different species of corpora-
tions into separate and distinct classes in such a manner that
none of the powers of a corporation of one class will fall within
another.
All jurists admit the obvious distinction between public and
private corporations, but they at the same time recognize that
all public corporations may possess franchises and corporate
powers which are of a private nature," and not partaking of the
character of a governmental power or duty; and conversely, it
is equally true that private corporations may be invested by
the legislature with powers which are public in their nature
and might well be performed by public officers.”
It follows,
1 A municipal corporation ordina-
rily possesses several distinct classes
of power:
First. Those strictly political or
governmental, pertaining to the po-
lice and governments, in which they
are the mere agents of the state.
Moffit v. Asheville, 103 N. C. 237; Hill
v. Boston, 122 Mass. 344.
A second class, such as the public
are always interested in, namely,
schools, hospitals, and the like.
Speight v. People, 87 Ill. 595; Benton
v. Trustees, 140 Mass. 13; Hearns v.
Waterbury Hospital, 66 Conn. 98.
A third class, only quasi-public in
their nature, such, for instance, as
gas-works, water-works for fire pro-
tection, electric-lighting plants, and
the like. Courts of different states
do not agree in classifying these
functions as public or private, but
most American cities possess them.
Springfield F. & M. Ins. Co. v. Keens-
ville, 148 N. Y. 46; Elmore v. Drain-
age Com., 135 Ill. 269; Hill v. Boston,
122 Mass. 344; Walla Walla Co. v.
Walla Walla, 19 Sup. Ct. Rep. 81.
A fourth class—private property.
Hill v. Boston, 122 Mass. 344–59; Safety
I. W. Co. v. Baltimore, 66 Fed. Rep.
140; People v. Hurlbut, 24 Mich. 103.
*This was wherein the difficulty
lay in the Dartmouth College Case.
The legislature of the state pos-
sesses the power to regulate the in-
ternal police of the state, and, having
regard to the health and lives of the
citizens of the state, to adopt such
wholesome regulations as may be
deemed best calculated to guard
against danger and evils on account
of the practice of the professions by
ignorant and incompetent or im-
proper persons. That this is a de-
partment of the police and a public
function no one will deny. The leg-
islature has the right to commit the
administration of such a power to a
private corporation. The corporation
in that case acts as a governmental
agent. It cannot be said that it ob-
tains a franchise, but it possesses a
power, and the possession of this
power and function does not make
the corporation public. Washing-
tonian Home v. Chicago, 157 Ill. 414;
Regents v. Williams, 9 G. &. J. 365;
31 Am. Dec. 72, 80, 81. It is there
said: “A corporation may be private,
and yet the act or charter of incor-
poration contain provisions of a posi-
tively public character, introduced
solely for the public good and as a
general police regulation of the State;
such as the statute of 14th and 15th
Henry VIII., chapter 5, creating the
College of Physicians in London, and
imposing a fine on persons practicing
without license from the college,
$ 427.] Local, SELF-GovKRNMENT—PUBLIC CORPORATIONS. 503
therefore, that the practical classification which solves the ques-
tions of power, liability or immunity is in each case to depend
upon the character of the specific corporate power attempted
to be exercised, or exercised, and not of the preponderating
powers of a given corporation which would determine its clas-
sification, when that is drawn in question." That the broader
classification is made according to the character of the founda-
tion and the principal and paramount corporate powers of the
given corporation.” *
Again, it is obvious that no general classification of public
or private corporations can be made which will be universal in
its application, unless the courts of the various states are uni-
form in the view which they hold as to the character of the va-
which was held to be a private cor-
poration (Gilbert's Evidence, 13), and
the statute of the same reign, chap-
ºter 42, founding the College of Bar-
bers and Surgeons.” See also Hearnes
v. Waterbury Hospital, 66 Conn. 98;
Louisville v. University, 15 B. Mon.
642.
1 People v. Detroit, 28 Mich. 228;
Galveston v. Posnainsky, 62 Tex. 118–
31; Heller v. Stremeld, 52 Mo. 309.
2 Mr. Justice Shiras (of the United
States district court), in the Yale
Law J., February, 1893, gives the fol-
lowing suggestion: “In the varied
uses and purposes to which corporate
powers and privileges are now ap-
plied, necessity exists for the adop-
tion of some general terms of classi-
fication, which, when applied to a
given corporation, shall describe with
reasonable accuracy the character of
the corporate body, having in view
the objects and purposes of its crea-
tion and the powers conferred upon
it. To that end, it is suggested that
corporations be classified as polit-
dical, public, and private. Political,
to include that class of Corporations
created to exercise delegated sover-
eign control over a defined subdivis-
ion of the state, like cities, towns,
parishes, counties, school districts,
and the like. Public, to include that
class created to aid in the perform-
ance of governmental public duties,
or in supplying public needs, like
companies organized to build and
maintain the public highways, or to
furnish water and light for common
use, or otherwise to supply the pub-
lic wants, and wherein, to enable the
corporation to accomplish the object
of its creation, there is conferred
thereon the power to exercise the
right of eminent domain or other
sovereign power; and private, to in-
clude that class of corporations cre-
ated to advance private enterprises
and undertakings, which are not au-
thorized to exercise any sovereign
power, but are in fact created only
to confer privileges not available to
the individual corporators.” It is
difficult to perceive how the change
of name from quasi-public to public,
in one case, would aid in simplifying
the matter; and would not the class-
ification of cities with towns and
counties obscure the distinction that
exists between them,-- the former
being real corporations, while the
latter only partake of the nature of
corporations and are only quasi such?
It is believed that the object to be
kept in mind is the nature of the
corporate power. -
504 Local SELF-GOVERNMENT — PUBLIC CORPORATIONS. [$ 427.
rious corporate bodies. This is also true as to the classification
of corporate functions; for it may, and in several instances
does, happen that the courts of the various states will not agree
as to what are public governmental functions and what are
mere private functions.
Again, too much weight must not be given to English cases so
far as they relate to the corporate nature of localities, because
of essential distinctions between the principles underlying the
nature of their powers." With this caution, therefore, as to the
generality of the classification, and the admonition to examine
the character and quality of each particular corporate power, a
general classification may be attempted. - *
All reasoning upon the classification of corporations, as to
whether they are public or private, goes back to the opinions
of Chief Justice Marshall, Justice Story and Justice Washing-
ton in the celebrated Dartmouth College Case, and those opin-
ions were based upon distinctions already well established.”
Some criticisms are indulged, and it is sometimes stated that
the opinions do not agree in the reasoning.
It is believed, however, that a close examination of these
opinions will prove them to be in entire accord, both as to
reasoning and conclusion. -
The Chief Justice says: “The character of civil institutions
does not grow out of their incorporation (that is, the fact of
being incorporated), but out of (a) the manner in which they
are formed, and (b) the objects for which they are created.”
The right to change them (by legislation) is not founded on
their being incorporated, but on their being instruments of gov-
ernment created for its purposes.
The same institutions, created for the same objects, though
not incorporated, would be public institutions and of course be
controllable by the legislature.
Webster had argued that the corporation was private be-
cause founded by private persons, and that the object was not
material. -
Justice Story says: “If the foundation be private, though
under the charter of the government, the corporation is private,
1 See Greenleaf's argument in 3 Trustees v. Woodward, 4 Wheat.
Rumford v. Wood, 13 Mass. 193. 638. -
*Terrett v. Taylor, 9 Cranch, 43.
§ 428.] LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. 505
however extensive the use may be to which it is devoted, either
by the nature of the foundation or the nature and objects of
the institution.”
The Public Corporation.— It is obvious that the language of
all contemplates that where the public is not only the incor-
porator, but the creator, of a corporation, and the use is also
public, the corporation must in that case be public; whereas, if
the association and institution is established by private agree-
ment, and becomes a corporation merely by grant of a charter,
the corporation is private in its nature, provided its purposes,
though of great public interest, are still regarded as in the nat-
ure of private enterprise, as distinguished from a governmental
object; but, although the association is voluntary, as in the case
of a city or incorporated village, but the objects of the incorpo-
ration are governmental, the corporation then becomes public.
Quasi-Corporations.— On the other hand, if some sort of loose
Organization is given solely for the purposes of government,
without regard to any prior agreement between individuals or
inhabitants, and without their acceptance or will in the mat-
ter, the association or organization, though public in its char-
acter, and partaking somewhat of the nature of a corporation,
is not, strictly speaking, a corporation, and is termed a quasi-
corporation.
The municipal corporation possesses a corporate capacity
and an identity distinct from the state, while the quasi-corpo-
ration is but one of the members or parts of the state, having
no distinct identity. It is in all respects a mere agency, hav-
ing no voice in its own creation."
SEC. 428. Public Corporations.—Public corporations are con-
Veniently classified as municipal corporations and quasi-cor-
porations.
Municipal corporations are the only organization within this.
designation which are, properly and strictly speaking, corpora-
tions. .
Judge Elliott, in his excellent treatise on Municipal Cor-
porations, says that “the distinguishing features of municipal
corporations are the possession of certain powers of legislation,
and of certain powers and privileges which are to be exercised
1 Heller v. Stremeld, 52 Mo. 309; Philadelphia v. Fox, 64 Pa. St. 169.
506 LoCAL SELF-GovKRNMENT— PUBLIC CORPORATIONS. [$429.
for the particular benefit of the inhabitants of the locality.
. . . Under the head of quasi-corporations are included
those bodies which are public in their nature, but in some cases
have not all the characteristic powers and liabilities of cor-
porations.” -
What is meant by these “certain powers of legislation” and
privileges which are said to be given to municipal corpora-
tions, and wherein they distinguish the properly so-called mu-
nicipal corporation from the quasi-corporation, which is always
erected for the purpose of “local self-government,” to be ex-
ercised in many instances by legislation for the particular
benefit of the inhabitants of the locality? -
The real distinction between the municipal corporation, prop-
erly so called, and the local Organizations, such as unincorpo-
rated townships, school districts and counties, consists in the
fact that the municipal corporation is a voluntary one, originat-
ing in personal agreement, and has a charter, which may confer
upon it not only powers strictly governmental, but also of a
private nature; and this charter once given cannot, so far as
private interests have wested, be taken away by the legislature,
and can be forfeited only by judicial process, although the
purely governmental power may be taken away at will.
In the so-called quasi-corporations, aside from constitutional
limitations, they are the mere creatures of the legislature.
They have no inherent charter rights as to their local self-gov-
ernment, except as protected by the constitution. Their func-
tions are entirely governmental.”
SEC. 429. General Classification of Private Corporations.”—
For the purpose merely of pointing out beforehand the nature
of these bodies, which will be treated hereafter, and contrasting
them with associations of a public nature, the classes and char-
1 Elliott, Mun. Corp., sec. 3.
2 Id. In the note, which cites 1
T)ill. Mun. Corp., sec. 20, it is said
that “the fundamental idea of a mu-
nicipal corporation is ‘the investing
of the people of a place with the local
government thereof.’” (Citing Cud-
don v. Eastwick, 1 Salk, 143, quoted
with approval in People v. Morris, 13
Wend. 325, 384.) This is precisely
the function of township organiza-
tion, and towns possess legislative
powers. The distinction, then, be-
tween towns and cities must be
sought further.
& People v. Village of Harvey, 142
Ill. 573. See post, sec. 432.
4A more minute classification will
be given when the subject of private
corporations proper is reached.
§ 430.] LOCAL SELF-GOVERNMENT—PUBLIC CORPORATIONS. 507
acteristics of private corporations will here be merely men-
tioned.
A private corporation is a franchise granted by the charter,
which includes the legislative enactment, whether in the form
of a general or special act, for an object which is private in its
interest and its nature. • |
This object may be one in which the public are vitally and
directly interested, and one which the public might properly
accomplish; but that does not necessarily change the matter."
Of such a character are educational and eleemosynary corpo-
rations, which it is extremely difficult to distinguish from a
public corporation, and possessing a class of powers which are
very frequently exercised by the public.
Quasi-public corporations are strictly private corporations,
but are so called because the object in which they are engaged
is of such general interest that it would be proper for the pub-
lic to engage in or aid; or of such a nature that it is essential
to the general convenience that such business be conducted,
regulated and controlled by the state. Familiar instances are
common carriers and warehousemen. The corporation itself is
strictly private: the nature of its business is what occasions the
designation quasi-public.” .
Bearing these distinctions in mind, the order of arrangement
naturally requires the treatment of the local subdivisions of the
states, after which will follow the treatment of the subject of
private corporations as private persons. :
SEC. 430. Local Organization — Form of—In considering
the systems of local self-government which obtained in the va-
rious state of the Union, it should be observed that the investi-
gation includes the subject of the corporate capacity or entity
of localities and also the law of subordinate officers, and in that
sense the treatment conforms strictly to the idea of personality
heretofore noticed, and the subject is still within the law of
persons, public or political. -
The system of local self-government which prevails in the
United States presents itself in a double aspect: the one a local
1 Trustees v. Woodward, 4 Wheat. Bakewell, 122 Ill. 339; Washing-
518; Academy v. Harvard College, 12 tonian Home v. Chicago, 157 Ill. 414.
Gray, 594; Board of Education v. 2 Miners’ Ditch Co. v. Zellerbach,
37 Cal, 576. -
508 LOCAL SELF-GovKRNMENT—PUBLIC CORPORATIONS. [$ 431.
territorial subdivision having no regard to the number of per-
sons occupying the territory, the other in conferring upon an
aggregation or collection of people an artificial, single corporate
capacity. The former are counties, townships or parishes; the
other pass under the name of cities, villages and towns." The
former are but quasi-corporations; the latter, if incorporated,
are municipal corporations.
SEC. 431. Historical View — Utility of:- An account of the
Origin of counties, townships, cities, villages, and the power and
duties of the magistrates to administer the law in these local-
ities, would constitute a history of local self-government.”
Tracing their origin from some rude germ in a remote age,
and explaining by what circumstances and with what modifi-
cations they come into our jurisprudence, would be a matter of
interest, but beyond the scope allowed in this work.
The practical utility of such an inquiry into the history and
Organization of counties and towns anterior to the settlement
of North America is very slight, if measured by the assistance
furnished by the information in judging of the nature, capaci-
ties, liabilities and exemptions of our own institutions passing
under the ancient names of cities, counties, townships, boroughs,
towns and villages.
One historian sees in the folk-mote the germ of the Anglo-
Saxon free state; * another concludes that, because in New
Bngland the inhabitants universally erected a meeting-house
which served as a place of religious worship and as a place for
the administration of local governmental affairs, there is an
analogy between the legal proposition that in England no place
could be a town if there had never been a parochial church
and this action on the part of the New England settlers.”
Saxon scyppen. However that may
be, the student of legal institutions
1 The words town and township
are frequently used indiscriminately
even in statutes and judicial decis-
ions. There was probably an essen-
tial difference in the signification of
the two, the town meaning a collec-
tion of houses, a little village, while
the township applied to the terri-
torial division. Mr. Elijah M. Haynes,
the writer of a local work in Illinois,
states that the suffix probably comes
from the Dutch Schip, or the Anglo-
must take the matter as it now ex-
ists, that is, with the indiscriminate
use prevailing.
* See Cooley's Blk. (3d ed.), App.
3 Johns Hopkins University Stud-
ies, vol. II, pp. 211–437.
4 Welsh v. Wray, Hobart, 41. But
this was, in England, an essential to a
town, not a township. Wood's Inst.,
Introduction. It is said of these
§ 431.] LOCAL SELF-GOVERNMENT—PUBLIC coRPORATIONs.
509
It will become early apparent to any one who investigates
these subjects that inquiry into early village communities
throws a very faint light upon the nature of village entities in
America. - s
Should it be undertaken to settle disputed matters involving
the rights and liabilities of boroughs, towns and villages in the
United States by applying the rules applied by the English
Courts to entities passing under the same name, without distin-
guishing between the nature of the different entities, it will be
discovered that the attempt can result only in confusion.
If regard is paid to our judicial decisions, which have gen-
erally been made after careful investigation, it will be discov-
ered that American municipal or quasi-corporations bear little
analogy to the English corporations bearing the same names.
Thus it is said the towns of New York are primarily political
divisions. This was in no sense the case in England. As towns
existed in New York they are unknown to the common law,
and are of purely statutory creation,” while the pure New
England town is an entirely different thing from the Eng-
Jish town.”
towns that the inhabitants are a cor-
poration for the purpose of supply-
ing religious worship. Huntington
v. Corporators, Kirby, 45 (Conn.,
1786).
1 There is occasion to use caution
to distinguish between decision and
dicta, even in our own decisions.
There is a tendency in dicta to as-
Cribe absolute and unlimited power
to the state legislatures over the ex-
istence and franchises of public cor-
porations. Mount Pleasant v. Beck-
with, 100 U. S. 514. But when the
Case turns upon a question of legis-
lative encroachment, the decisions
have imposed important limitations
upon the power of the legislature.
* Dorn v. Town of Oyster Bay, 84
Hun, 511.
3 Boston was the first town in New
England. For an interesting history
Of these early societies, see observa-
tions of the reporter in Smith, New
Hampshire Report, pp. 1, 271–274.
“Few, if any, English corporations,”
Says an early New Hampshire case,
“were like our towns.” And speak-
ing of the competency of inhabitants
as witnesses, it is said: “In deter-
mining whether this interest is suffi-
cient to render the inhabitants of
towns incompetent witnesses for the
towns in which they reside, very
little aid can be derived from Eng-
lish authorities, because in England
there are very few, if any, corpora-
tions which exactly resemble our
town corporations. The charters of
their cities, etc., usually confer par-
ticular private privileges upon the
members of the corporation, So that
the corporation is not merely public,
but must be considered as in some
respects a private corporation. And
most of their decisions upon this
point are so loosely reported that it
does not distinctly appear what in-
fluence this circumstance may have
had upon the decision in particular
510 LOCAL SELF-GovKRNMENT — PUBLIC CORPORATIONS. [$ 432.
SEC. 432. Counties and Townships are Organic Elements of
the State and are Inviolate.—The student or jurist, examining
the subject of the relative powers of the legislature and the
local, organizations, towns, villages, counties and cities, will dis-
cover much apparent contradiction of opinion as to the rights
of the general legislative body of the state to add to or take
from the powers and functions of these local bodies.
Expressions are common that these local subdivisions are
mere auxiliaries of the state legislature; that they are the mere
creatures of the legislature, and are entirely within its control;
and that the legislature may enlarge, alter or divide, or en-
tirely abolish, these local corporations.
The supreme court of Illinois says: “The relation between
cities and villages and counties" is totally unlike that between
the government of the state and the general government of
the United States. Cities, villages and counties are mere agen-
cies of the state, by and through which to conveniently ad-
minister the local government. In the absence of express
constitutional restraint, the general assembly might abolish
them, one or all, and substitute other and entirely different
agencies in their stead.”
Indeed, the supreme court of the United States has said that
they (these local bodies) cannot have the least pretension to
sustain their privilege or eacistence upon anything like a contract
between themselves and the legislature of the state;” seeming
to imply that their existence was a privilege.
On the other hand, there are numerous expressions that
there are limitations upon the power of the legislature to abol-
ish townships, counties and cities, and that the admission of
such a proposition admits that local-self-government exists at
the will of the legislature.
Advocates on either side of cases quote the language of these
cases. It is, however, probably owing
to this very circumstance that no
general rule as to the admission of
corporators as witnesses has ever
been established in England. 2
Shower, 148; Weller v. Governors of
the Foundling Hospital, 3 Burr.,
p. 1847.” Eustis v. Parker, 1 N. H. 276.
1 There being fundamental distinc-
tions between villages, towns, coun-
ties and cities, it is strange that in a
case where only the powers of a city
were under discussion they should
be grouped in one general statement.
2 County of McLean v. City of
Bloomington, 106 Ill. 214.
3 Mt. Pleasant v. Beckwith, 100
TJ. S. 514,
§ 432.] LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. 511.
opinions to sustain their positions: the one, that the legislature
may do anything, because they created and they may destroy;
the other, that the legislature cannot take away local self-gov-
ernment." '.
The confusion which results from these general, unqualified
statements is lessened if the true distinction between the sub-
jects involved is made; and, by confining the expressions used
in these opinions to the particular facts of the case, most of the
decisions may be harmonized, but the obiter contained in the
expressions cannot. -
Classes of Powers Possessed by Townships and Counties.—
The inhabitants of a township unincorporated, or a county, are
not an agency. They are a part of the constituent body.” They
possess both political rights and civil rights.
These local organizations exist for a double purpose:
First, as political subdivisions, essentially for the exercise of
the political rights of the citizen in our scheme of a republican
government with its representative system. This is the para-
mount and principal function of the county and township or-
ganization.
Second. The governmental function as an agency of the leg-
islature to aid in exercising the administration of the affairs of
the state. This is not essential to the existence of the town-
ship or county. The legislature, no doubt, has full and com-
plete control over the general government of the state, and may
choose the town officers or county officers as an agency to carry
out those matters over which the legislature has complete con-
trol; but the political powers of the inhabitants are beyond
and above the power of the legislature, and so are matters
purely local. The opposite view as to absolute power is a mere
theory without an instance of its exercise.”
“Political legislation,” says Grimke in his celebrated argu-
ment before referred to, “is then, according to our distribution
of power, the peculiar province of the people.
“Civil legislation is the appropriate office of the general as-
sembly. The Ordainment of a constitution, under our improved
1 See 2 Cooley's Blk., App., p. 469. 40; McCrary on Elections (4th ed.),
*They are the people. They, 13, 24. -
through their votes, are the sovereign 3 See Judge Cooley's view. 2 Cool-
body. Cooley's Const. Lim. (6th ed.) ey’s Blk. (3d ed.) 468.
512 LOCAL SELF-GOVERNMENT—PUBLIC CORPORATIONS. [$ 432.
system of government, is therefore of itself a withdrawal of
political power, by the act of the people themselves, from the
jurisdiction of the general assembly, and an appropriation of
it exclusively to themselves. Can it be denied that the beauty
and harmony of our system, theoretically considered, justify
and require this construction?”
|Mr. Webster, in his argument in the Rhode Island rebellion
case, said: “In England the representative system originated,
not as a matter of right, but because it was called by the king.
The people complained sometimes that they had to send up
burgesses. At last there grew up a constitutional representa-
tion of the people. In our system it grew up differently. It
was because the people could not act in mass, and the right to
choose a representative is every man's portion of sovereign
power. Suffrage is a delegation of political power to some
individual.”?
Our representative system requires the choice by localities
of state representatives and local Officers; hence the local sub-
divisions. These subdivisions are constituent bodies for this
purpose.
We have heretofore sufficiently distinguished between the
government and the people. Suffrage is an act of the people.
If the local subdivision does not rest on contract, as asserted
by the supremé court, it does rest on a species of convention,
namely, the constitutional basis upon which is founded our
whole republican system of local self-government. That legis-
latures have until recent years been very cautious and sparing
of enactments encroaching upon this system is the only reason
why the right has not been defended. In recent years en-
croachments have been made by the legislature and have been
as promptly checked.” -
1 State v. Hunt, 2 Hill (S. C.), *13.
2 Luther v. Borden, 7 How. 1.
8 “The political organization called
the ‘state’ is created for the protec-
tion and enforcement of the rights
and liberties of the people. Its sover-
eignty or power of rightful control is
for the protection of personal [civil]
and political rights as well. Prom-
inent among these rights and liber-
ties is the right of citizens to partici-
pate in the election; to have their
proper voice and influence and just
representation in the representative
branch of the government as mem-
bers and as possessors of the Sover-
eignty vested in the people Outside
of the constitution, and not delegated
by it. It is this sovereignty, these
rights, these privileges and liberties,
of the people which this court by
virtue of its prerogative jurisdiction
§ 432.] LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. 513
The proposition that township and county organizations
exist at the will of the central legislative assembly is now re-
pudiated by weight of authority and force of opinion, which
does not admit of contradiction. In fact, there are no decis-
«ons which hold that the legislature can abolish the political
functions of the people exercised through these organizations,
Or abolish these territorial divisions.
There are many decisions holding, and properly, that such
mere governmental functions as are delegated by the legislature
may be resumed by the same body. Herein lies the true dis-
tinction. These local Organizations exist for local purposes as
constitutional rights, or the whole system falls. As is well said
by Judge Cooley: “There is no middle ground. A state has
no constitutional safeguards for its people, or it [a city even]
has the right to have all its officers appointed at home. Unless
this power is exclusive, the state may manage all city affairs by
its own functionaries; and this is more true of the town, and
county Organization than of a city.” "
The boundaries may be changed, enlarged or diminished, but
the local subdivision must be preserved for the purpose of serv-
ing the function of local representation in our republican form.
of government.
As a matter of course, all authorities admit that the prop-
erty rights of the locality or the inhabitants thereof must be
preserved.”
has an undoubted right to protect
and enforce, as against unconstitu-
tional and illegal attack from all
sources whatever. Chief Justice
Ryan, in In re Ida Louisa Pierce, 44
Wis. 431–443, speaking of the orig-
inal jurisdiction of the court, and the
purposes for which it exists, uses the
following pertinent language on this
subject: ‘The words “liberties of the
people,” in a judicial sense, mean the
aggregate political rights and fran-
chises of the people of the state at
large. The liberties of the
people here and elsewhere are not
Only essentially subject to the ordi-
nary jurisdiction of the courts, not
Only unimpaired by them, but are
absolutely dependent upon them.
The supremacy of original judicial
processes enters into the liberties of
the people, and is essential to them.
Order is essential to all liberty, and
judicial Supremacy is essential to
order.’” State v. Cunningham, 81
Wis. 498, 499. This case came again
before the court, and the principle
was again enforced that the political
right of the people to their local
plan of selecting representatives was
above legislative encroachment. 83
"Wis. 90. t -
1 People v. Hurlbut, 24 Mich. 44.
2 “In respect, also, to public corpo-
rations which exist only for public
purposes, such as Counties, towns,
33
514 LoCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. [$ 433.
SEC. 433. The Position of the City Distinguished.— The po-
sition of the city is in this respect different. While the city
plays an important part in Our affairs, it is not primarily the
purpose of the city to perform political functions, excepting
in anomalous cases mentioned by Judge Tucker, heretofore
alluded to; and whatever of governmental functions the city
performs, it does so by delegation.
As applied to the governmental powers of a pure municipal
corporation, a city or incorporated town, it may be truly said, as
stated by Judge Sharswood: “It is merely an agency, instituted
by the sovereign for the purpose of carrying out in detail the
objects of government, essentially a revocable agency, having no
vested right of erection, being in no sense a contract with the
state, and therefore fully subject to the control of the legislature,
who may enlarge or diminish its territorial extent or its func-
tions, may change or modify its internal arrangement, or destroy
its very existence with the mere breath of arbitrary discretion.
&c volo, São jubeo, is all the sovereign need say.”
cities, etc., the legislature may, wºnder
proper limitations, have a right to
change, modify, enlarge or restrain
them, Securing, however, the prop-
erty for the uses of those for whom
and at whose expense it was origi-
nally purchased.” Terrett v. Taylor,
9 Cranch, 43–52; People v. Hurlbut, 24
Mich. 44. See People v. Draper, 15
N. Y. 557; People v. Albertson, 55 N.
Y. 50. For a thorough examination
of these principles see Rathbone v.
Wirth, 45 N. E. Rep. 15. Gray, J., in
this case, quoting Cooley’s Const.
Lim., p. 35, says: “If not expressly
recognized, it is still to be under-
stood that all these instruments are
framed with its present existence
and anticipated continuance in
view. The principle is one which
it takes but little reflection to con-
vince the mind of being fundamen-
tal to Our governmental system, and
as contributing strength to the na-
tional life, in its educational and
formative effect upon the citizen. It
means that in the local or political
subdivisions of the state the people
of the locality shall administer their
own local affairs to the extent that
that right is not restricted by some
constitutional provision. The-
theory of the constitution is that the
Several counties, cities, towns and
villages are, of right, entitled to
choose whom they will have to rule.
over them; and that this right can-
not be taken from them, and the
electors and inhabitants disfran-
chised, by any act of the legislature,
or of any or all the departments of
the state government combined. . . .
It is a right not only to be carefully
guarded by every department of the
government, but every infraction or
evasion of it to be promptly met and
Condemned, especially by the courts,
when such acts become the subject
of judicial investigation. It,
cannot be denied that legislation of
this character has an inimical tend-
ency, and unless the check of the
constitution is strictly enforced by
the courts, it may develop a germ of
menace to local self-government.”
1 Philadelphia v. Fox, 64 Pa. St. 169.
§ 434.] LooAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. 515
Even in the case of the city, however, this language carries
an impression beyond that justified by law. A governmental
function properly exercisable by the general government, but
delegated by it to the city, may be resumed; but it cannot be
said that a locality may be incorporated into a city, and then
the whole district governed by the officers appointed by the
state legislature. *
These general expressions confuse and mislead, and it is hard
to understand why a court deciding a specific point in refer-
ence to the power of a city or town should indulge in general
language applicable to cities, villages, counties and townships.
It may not be out of place to again remark the importance of
observing the nature of the power or function in question in a
given case, rather than the name of the organization to which
it is delegated." -
SEC. 434. Counties.—Counties were the ancient territorial
civil divisions of England. They have always existed in those
colonies and states which recognized the English sovereign and
parliament as having a governmental oversight as to local
affairs; and wherever there has been a direct control, the pri-
mary subdivision of the territory has been into counties. -
The Virginia county system is the one usually contrasted
with the New England township organization.”
1 See cases cited in last section, and
especially Rathbone v. Wirth. In a
recent Michigan case, after defending
the county, the court says: “But a .
city, especially one not in existence'
at the time of the adoption of the
constitution, is the creature of the
law, and has no constitutional right
of being. There was no city at the
time the present constitution was
adopted, situated in this state, and
there has been none since.” Board v.
Blacker, 92 Mich. 650.
2 Of this organization Tucker says:
“The civil division of the territory
of Virginia is primarily into coun-
ties. Formerly there were one or
more parishes in every county; in
each of which a minister was estab-
lished, with a salary, etc. The case
Of the poor was another object of the
parochial division, which seems now
to be virtually discontinued in all, as it
is actually in the new-made counties.
Every county is by the con-
stitution entitled to send two repre-
sentatives to the general assembly;
in every county there is also held a
monthly court for the trial of all
causes not exceeding twenty dollars
or eight hundred pounds of tobacco,
and for other purposes, such as the
proving and recording of wills, deeds,
granting letters of administration,
etc., and generally for the regulation
of the business of the county; as
also, a quarterly court for the trial
and decision of all causes of a civil
nature, both at common law and in
equity, to any amount; they have
also cognizance of pleas of the com-
monwealth in all cases where the
516 LoCAL SELF-GovKRNMENT – PUBLIC CORPORATIONS. [Š 434.
As we have seen, the ancient New England town' was a
purely voluntary association, paying little regard to territorial
location, its boundaries marking rather a proprietary Owner-
ship than a governmental institution; whereas the county has
always been a territorial subdivision created by a higher legis-
lative or sovereign power.
In England counties existed only for governmental purposes
and as a subordinate agency of the Sovereign. An exception
to this were the counties palatine,—that is, counties by charter
granted special privileges of a private or corporate nature
a local jurisdiction.”
and
A county has some corporate characteristics, but it is not a
punishment doth not extend to life
or member, or to disqualification
from office. The justices of
the county are judges of the courts,
and the sheriff, or, in case of his dis-
ability, the coroner, is the ministerial
officer of the court and county. The
county lieutenants heretofore had
the military arrangements of the
county committed to their care, each
County composing one or two Sep-
arate regiments of militia,
manded by proper officers. But their
office seems now to be discontin-
ued.
“The counties are by the constitu-
tion distributed into twenty-foursen-
atorial districts, each district being
entitled to send one senator. The ar-
rangement of the counties into dis-
tricts for this purpose was made by
the same convention which estab-
lished the constitution; it has not
since been altered, the new-made
counties having uniformly been ar-
ranged to the same district as the
county or counties from which they
were taken. . . .
“There are a great many towns
(villages), Or, more properly speaking,
sites for towns, established by act of
assembly in Virginia. These
towns have no other privileges that
I know of, except conferring upon
the freehold possessor of a lot therein,
f
COIOl- *
with a house thereon of twelve feet
Square, the right of suffrage.
“There are also several corporate
towns, which possess the privilege of
making by-laws for the regulation of
their own police, with the further
privilege of holding courts, but no
other privilege, beyond the common
towns above mentioned. Of these,
Fredericksburg, Alexandria, Peter-
burg, Winchester, Staunton, and
York, are either the whole, or the
most considerable. Norfolk
is a corporate borough, and is by the
constitution entitled to a representa-
tion in the assembly. Williamsburg
and Richmond are cities, a title
which they seem to have derived
from having been respectively the
seat of government. Both
are entitled to a representative in
the general assembly, the former by
the constitution, and the latter by an
act passed in the year 1783. In all
the corporate towns, as well as in
Richmond, Williamsburg and Nor-
folk, the jurisdiction of the courts is
somewhat more limited than that of
the county courts.” 1 Tucker's Blk,
120, note. #
1 This must be confined to the an-
cient pre-Revolutionary town.
2 Proprietaries.—There existed in
New England another Organization
so peculiar as to be called Sui generis.
§ 434.] LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. 517
municipal corporation, though often so termed. It is an orig-
inal political or civil division of the state, created by consti-
tutional authority or statute for the purpose of securing local
suffrage and representation and also to aid in the administration
of government. It is in its very nature, character and pur-
pose, public, a constituent element in the state, and a govern-
mental agency or auxiliary, rather than a corporation. All the
governmental powers with which county officers are intrusted
are the powers of the state, and all the duties with which they
are charged are the duties of the state;' but in the representa-
tive system the counties possess rights and functions not de-
rived from the legislature.
Counties are the political division of the state government,
Organized as part and parcel of its machinery, like townships,
It was the proprietary organization—
a species of ownership entirely anom-
alous. See Proprietors of Cornish v.
ICendrick, Smith (N. H.), 270.
As to the signification of county
in English treatises, the following is
Copied from an English law diction-
ary, compiled by F. O., printed in
1701: “‘County’ signifieth as much
as ‘shire,” the one descending from
the French, the other from the Saxon;
both containing a compass or portion
of the realm, into the which all the
land is divided for the better gov-
ernment thereof and more easy ad-
ministration of justice, so that there
is no land but it is within some
County, and every county is gov-
erned by a yearly officer, whom we
call a sheriff. (Cook on Lit., lib. 2,
Cap. 10, sec. 124.) Of these counties
there be four of especial note, which
therefore are termed ‘county pala-
times,’ as the county palatine of Lan-
caster, of Chester, of Durham, and of
Ely; but Ely has been denied to be
a palatine. And this county palatine
is a jurisdiction of so high a nature
that rules of pleas, touching the life
Or maim of man, called pleas of the
crown, are ordinarily held and sped
in the king's name, and cannot pass
in the name of any other. The gen-
eral governors of these, by special
Charter from the king, did hereto-
fore send out all writs in their own.
name, and did all things touching
justice as absolutely as the prince
himself in other counties, only ac-
knowledging him their superior and
SOvereign. But by the statute Anno
27 H. 8, cap. 25, this power is much
abridged. There are likewise coun-
ties corporate, as appeareth by the
statute Anno 3 Ed. 4, cap. 5, and
these are certain cities (see Cooley, J.,
in People v. Hurlbut, 24 Mich. 44) or
ancient boroughs of the land, upon
which the princes of our nation have
thought good to bestow such ex-
traordinary liberties. Of these the
famous city of London is one, and the
principal; York is another (Anno 32
|H. 8, cap. 13); the city of Chester a
third (Anno 42 Eliz., cap. 15); Canter-
bury a fourth (Lambert Eiren, lib. 1,
cap. 9, Coventry). And to these may
be added many more; but I have
only observed out of the statutes and
other writers the county of the town
of Kingston-upon-Hull (Anno 32 H. 8,
cap. 26), and the county of Litch-
field (Cromp. Just. P., fol. 59, a). The
county of the town of Haverford,
West (Anno 35 H. 8, cap. 26).”
1 Askew v. Hale, 54 Ala. 639.
518 LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. [$435.
school districts, and kindred subdivisions. They do not derive
any of the powers they possess by a special charter. Their
functions are wholly of a public nature, and their creation a
matter of public convenience and governmental necessity, and,
in order that they may the better subserve the public interest,
certain corporate powers are conferred upon them. Whether
they will assume the corporate powers and perform the duties
and obligations imposed are questions over which they have
no choice, but their assumption is obligatory."
SEC. 435. Towns — The New England Town.— Swift, in his
System of Connecticut Laws, says: “Towns in their present
form are a corporation” which originated in the state of Massa-
chusetts, and are coeval with the settlement of the country.
Though it be unquestionably a fact that our ancestors borrowed
the name of towns from the country that gave them birth, yet
so different are the powers and privileges that are vested in
such corporations here from what they had in England, and so
little is the resemblance between the institutions, that our towns
Ought to be considered as an Original discovery in civil policy.
At the first settlement of an uncultivated country it was natural
to lay it out in Small towns for the purpose of accommodating
1 Granger and wife v. Pulaski Co.,
26 Ark. 37–39. See Riddle V. Pro-
prietors, 7 Mass. 169, cited and elabor
rated; Commissioners v. Mighels, 7
Ohio St. 109–33; Hampton v. Frank-
lin, 16 Mass, 75.
* This is a loose use of the word.
The New England towns were not
Originally Created by a superior leg-
islative power. They were origi-
nally voluntary, and existed before
the calling of a general court. See
note, 32 Conn. 136–37. “The colony
of New Plymouth may be regarded
as the most ancient establishment
in New England. The adventurers
procured a patent from the Virginia
Company in 1620, and, eight years
after, a charter was obtained from
the Crown, the settlement having
|been previously effected. This char-
ter, according to Governor Hutch-
inson, was intended to constitute a
corporation in England like that of
the East India Company; but on the
proposal of several gentlemen of fig-
ure and estate who were dissatisfied
with the arbitrary proceedings [in
England] both in church and state,
and pleased themselves with the pros-
pect of the enjoyment of liberty in
both in America, it was resolved the
Succeeding year, by the general con-
sent of the company, that the gov-
ermºment and patent should be settled
Żm New England. In 1630 they es-
tablished rules for proceeding in all
civil actions, and instituted subor-
dinate powers for punishing offend-
ers. In civil actions, equity, accord-
ing to the circumstances of the case,
seems to have been their rule of de-
termining; the judges had recourse
to no authority but common sense
and understanding.” 1 Tucker's BIk.,
App., 397.
§ 435.] LOCAL SELF-GOVERNMENT—PUBLIC CORPORATIONs. 519
the adventurers who commenced the settlement in small par-
ties. When towns were thus instituted, it was natural to vest
them with all the powers necessary to manage their internal
concerns and for their mutual protection and defense. It is
beyond a doubt that the peculiar situation of the first settlers
of this country led to the discovery and establishment of towns."
The same principle induced the first settlers in this state (Con-
necticut) to adopt the same institution. They therefore di-
vided the country into towns of suitable extent to accommodate
the meeting of the inhabitants for civil purposes. However
unimportant this practice may appear, yet an attentive exam-
ination will convince every one that it is the introduction of a
principle which, if carried to its full extent, may produce the
most beneficial effects in a republican government.”
The Free Planters of Connecticut had no charter when they
emigrated from Massachusetts, which was an organized com-
monwealth.”
1 The novel feature of the New
England town, which distinguished
it from any Organization in England,
was the town meeting — the central
feature of the New England system:
of self-government, and which in
time caused the town system to be
regarded as an institution rather
than an instrument. The town meet-
ings were spoken of in England as
hotbeds of sedition; on this side, as
the cradle of civil liberty. The stu-
dent of political science sees this
readily. The student of law should
grasp the point that the pivot of
self-government is the system of
local legislation for local affairs and
the choice of representatives by local
electors. See, however, Shumway v.
Bennett, 29 Mich. 451.
2 Swift's System of Conn. Laws,
pp. 151, 152 [1795].
3 Webster v. Town of Harwinton,
32 Conn. 131. “The Free Planters
of Hartford, Windsor and Wethers-
field had no patent from the king.
They emigrated from Massachusetts,
which was then an organized com-
monwealth, and with the consent of
that commonwealth; but they re-
ceived from Massachusetts no corpo-
rate powers. They came from three
different towns in as many parties,
and when they settled themselves
down on the banks of the Connecti-
cut they settled in three different
places, and could, and did, organ-
ize themselves and establish govern-
Trvents as plantations or towns, and as
One colony, and with a general court
Or legislature for all, and thus pro-
tect themselves, and make and wage
Offensive and successful war against
their hostile Indian neighbors. But
the inhabitants of the several planta-
tions and towns obviously could not,
and did not, constitute themselves
corporations; nor were they created
such by any superior government,
existing or of their Own Creation,
and were not such in any sense of
the term which can be recognized
by a jurist in determining a question
of constitutional law. They and all
the other towns of the state, however,
are now Corporations, and of course
have charters. What are those char-
ters, and whence derived?” Web-
520 LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. [$ 436.
Counties were not the original local units in New England;
they were a creation of the general assembly. In New York
the case is different, where towns and counties existed from the
beginning, the state at first being governed by a royal gov-
ernor, without a local general assembly—an anomalous condi-
tion brought about by the conquest of New York from the
Dutch.1 -
In Massachusetts and Connecticut the townships are repre-
sented in the legislature, while the counties are not taken into
consideration as local political divisions in the choice of repre-
sentatives.” - *
In New York there seems to be a difference of opinion as to
whether the unit of representation was the town, or a numerical
body. One learned jurist affirms that the town is the unit,” while
another equally distinguished holds that the policy of the state
has always been to apportion representatives according to the
number of inhabitants,” while a somewhat different view is
taken by another.”
SEC. 436. Modern Townships.-The New England township
was never seen in its purity outside of New England. Modern
township organizations as created in the states differ in some
essential particulars. For instance, in Pennsylvania, Ohio, In-
diana, Iowa, Kansas and Missouri, the local functions of the
town are preserved and a measure of self-government is re-
tained, but there is no town meeting, nor is the town as a town
represented on the county board; and the county system pre-
vails in its authority over the township, and the county is rep-
resented in the legislature of the state.
The New York plan, which is adopted with some modifica-
ster v. Town of Harwinton, 32 Conn.
131, 136. For the history of New
England towns, see Introduction to
Root's Reports, vol. 1, p. v.; Proprie-
tors of Cornish v. Kendrick, Smith's
N. H. Rep. 270.
1 As to the territory wrested by
JEngland from the French and Dutch,
Blackstone's remark, that they were
conquered, applied; but, because Eng-
land laid original claim, the colonists
held they were only reconquered.
Johnson v. McIntosh, 8 Wheat. 598.
21 Swift's System, 59; Hampton v.
Tranklin, 16 Mass. 87; Story’s Misc.
Writings, 516.
3 People v. Rice, 135 N. Y. 473, 498.
4 Baird v. Supervisors, 138 N. Y.95.
5 People v. Supervisors, 147 N. Y. 1,
16, 17. See also In re Whitney, 142
N. Y. 531. A Wisconsin jurist asserts
that the county has been the most
important body in the Anglo-Amer-
ican scheme of self-government.
State v. Cunningham,81 Wis. 440–525.
§§ 437-8.] LOCAL SELF-GOVERNMENT—PUBLIC CORPORATIONS. 521
tions in Illinois, Wisconsin, Nebraska and Michigan, preserves
the town meeting, but not the representation in the state legis-
lature. w -
The county board is a representative body of supervisors
from the towns. In all it will be seen that there is a power
of local legislation, but no strict uniformity is preserved."
SEC. 437. Congressional Townships.- A local subdivision fre-
quently encountered in judicial discussions is the congressional
township.
A congressional township is a subdivision which congress
has provided in the survey of the public lands of the United
States for the purpose of entry and sale. -
It is not necessarily a political subdivision of a state or a
county. If the state subdivision coincides with the congres-
sional lines, it is only because the state constitution or legisla-
ture has adopted these lines.” .
In many of the western states sections No. 16 in all town-
ships surveyed by the government were granted to the state
for the purpose of use or disposal for school purposes. They
are held in trust for that purpose exclusively, and neither the
land itself nor the proceeds of it can be devoted to any other
purpose, nor can any other burden be imposed upon it.”
SRC. 438. Quasi-Corporations Have No Inherent Govern-
mental Powers.-Counties and townships, and indeed cities and
villages as well, derive all their powers and rights to legislate
from the constitution, or the legislature which created them.”
1 Bloomfield v. Charter Oak Bank,
121 U. S. 121.
2 Weightman v. Clark, 103 U. S.
256. See Hackett v. Ottawa, 96 U. S.
86; People v. Trustees of Schools, 78
Ill. 136; Elliott's Mun. Corp., § 9.
& People v. Trustees of Schools, 118
Ill., 52. *
4 Crofut v. Danbury, 65 Conn. 294.
“The powers expressly granted to a
municipal corporation carry with
them such other powers as are nec-
essarily implied in or incident to
such grants, and it also possesses all
powers which are indispensable to
the attainment and maintenance of
its declared objects and purposes.
Municipal corporations are more
strictly limited in these respects
than private corporations. The test
of their right by implication to ex-
ercise any particular power is the
necessity of such power, not its con-
venience. If there is a reasonable
doubt as to its existence, it does not
exist. Pratt v. Borough of Litchfield,
62 Conn. 112, 118; Dailey v. New
Haven, 60 id. 314, 319; New London
v. Brainard, 22 id. 552; Ottawa, v.
Carey, 108 U. S. 110, 121; Merrill v.
Monticello, 138 id. 673, 681.” Crofut:
v. Danbury, 65 Conn. 294. These pow-
ers which are granted are such as
are expressly granted, or fairly imir
522 LoCAL SELF-GovKRNMENT—PUBLIC CORPORATIONS. [$ 439.
It was formerly argued in New England that because town-
ships were older than the state constitution, and older than the
legislature, they preserved unto themselves certain inherent
rights, unless they were limited by the constitution; but that
proposition has been refuted, and it may now be taken as settled
that these subordinate bodies derive all their powers from the
constitution or the legislature." -
SEC. 439. Quasi-Corporations Have No Inherent Liability
for Negligence or Torts of Officers.--These governmental
agencies being in fact, in effect, but a part of the state, are, as
a corporate body, no more subject to liability, excepting by
statute, than is the state itself; and aside from some legislative
provision, they are not liable on account of the malfeasance or
non-feasance of their officers.
The distinction must be kept in view between the liability
of township officers and the corporate body itself.”
It may be stated as an absolute rule, that where the power
exercised, or attempted to be exercised, is governmental in its
plied from those expressly granted,
and those essential to the accomplish-
ment of the declared objects and pur-
poses. Wheeler v. Wayne Co., 132 Ill.
599; Dill. Mun. Corp. 89. They derive
none of their powers from, nor are
any of the duties imposed upon them
by, the common law. Shepley, C. J.,
in Hooper v. Emery, 14 Me. (2 Shep.)
375.
1 Webster v. Township of Harwin-
ton, 32 Conn. 131. Interesting his-
torical matter is contained in the
discussion on either side of the ques-
tion involved in this case. The Massa-
chusetts Courts were called upon to
repel the same argument with the
same conclusion, and this court also
traversed the same historical ground
as to the origin and development of
the New England town. Stetson v.
JKempton, 13 Mass. 272; 7 Am. Dec.
145. -
* “While such corporations as vil-
lages, towns and cities, created for
their own benefit, are held liable to
private actions for injuries resulting
to individuals by reason of the neg-
lect of the corporate authorities to
keep their streets, street-crossings
and sidewalks in repair, there is a
distinction in that regard between
that character of corporations and
towns established by law as civil di-
visions of a county merely; the lat-
ter are not liable, either by the com-
mon law or under any statute in this
state, to a private action for damages
occasioned by the neglect of the
town authorities to keep their pub-
lic highways in repair.” Town of
Waltham v. Kemper, 55 Ill. 346. See
Board v. Allman, 142 Ind. 573, for a
great citation of cases. It has been
Tepeatedly held that a county, being
a political Subdivision of the state, is
not liable in an action for damages,
unless by consent of the state. A
County, for example, has not the ca-
pacity to be sued except it is con-
ferred by the law of its incorpora-
tion; and if a mode of procedure is
pointed out, that mode must be
strictly pursued. Rock Island v.
Steele, 31 Ill, 543. See 68 Am. Dec.
298, note.
§ 440.] LOCAL SELF-GOVERNMENT—PUBLIC CORPORATIONS. 523
£
nature, the subordinate body exercising it, whether a municipal
corporation or a quasi-corporation, or a mere local board at-
tached to one of these, is no more liable to private action than
is the state.” This principle is equally applicable to municipal
corporations. The nature of the power, whether it be general
and governmental or local and private, is the test applied by
the courts. Naturally, courts do not agree as to the nature of
the same power or function. - -
SEC. 440. Direct Injuries by Acts Dome in Good Faith.--
There is a distinction between the rule as to the liability of a
quasi-corporation on account of the negligent action and non-
feasance or trespasses of its officers in the nature of torts, and
damages which are occasioned to an individual or his prop-
erty by affirmative action by officers in supposed execution of
a corporate power for a public purpose. -
In such cases, where the individual sustains a special injury,
it may be said that his property has been taken or damaged
for the public use, and compensation should have been made
in the first instance, or the work which caused the injury should
be abated as a nuisance.”
On this as on most other questions, there is not entire uni-
formity of holding, but there are cases that hold the quasi-
corporation itself liable in such cases.” -
1 McDonald v. Hospital, 120 Mass.
432; Glavin v. Hospital, 12 R. I. 41.1;
Hughes v. County of Monroe, 147 N.
Y. 49.
2 Springfield F. & M. Ins. Co. v.
Reenesville, 148 N. Y. 46. See Hill
v. Boston, 122 Mass. 344; Hughes v.
Monroe Co., 147 N. Y. 49. There was
Some confusion in Indiana on the
question, but that court has fallen
into line, overruling former anoma-
ious cases. Board v. Allman, 142 Ind.
573.
8 Young v. Com’rs of Highways, 134
Ill. 569. .”
4 Hill v. Boston, 122 Mass. 344. As
to the ancient rule of holding the
inhabitants indictable for not repair-
ing, see the case of State v. Hudson
Co., 1 Vroom (30 N. J. L.), 137.
Where the injury was claimed to
result from the negligent manner of
doing the work, the liability was held
to rest directly upon the town (quasi-
corporation) by Justice Breese in
Town of Harlem v. Emmert, 41 Ill.
319. It was denied in a later case in
the same state (Cooney v. Town of
Hartland, 95 Ill. 516), where it was
held that the tort was the tort of the
officer only. The reasoning in the
case of Hill v. Boston, 122 Mass. 344,
which holds the same liability and
exemption for town and city, would
sustain the action against the town-
ship. The liability is directly held
in Coburn v. San Mateo County, 75
Fed. Rep. 520, to rest upon the county;
the court there remarking: “There
is a large class of cases in which the
rights of both public and individuals
may be deeply involved, in which it
524 LOCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. [$441.
SEC. 441. Contractual Liability.—That a quasi-corporation
may be bound by contracts made by its agents within the scope
of its authority, and within the scope of the power of the town
to contract, is elementary.
Indeed, they may be held upon implied contract;' but the
contractual liability of a public corporation is subject to two
limitations: First, the act must be within the scope of the cor-
porate powers; second, the mode of contracting, if prescribed,
must be strictly followed.”
A contract not within the scope of the powers of the corpora-
tion is termed ultra vires, and if it is ultra vires in a strict
sense, no recovery can be had on account of benefits.”
Where power is given a public officer or corporation to con-
tract with reference to a particular subject, and the statute is
silent as to the manner in which the contract shall be made,
the public may be held liable as upon an implied contract,
under like circumstances as an individual; but where the power
to contract is coupled with specific direction as to the mode of
incurring the liability, there can be no implied contract, for
the law in such case only authorizes an express contract.”
cannot be known at the time the act
is done whether it is lawful or not.
The event of a legal inquiry in a court
of justice may show that it was un-
lawful. Still, if it was not known and
understood to be unlawful at the
time, if it was an act done by the
officers having competent authority,
either by express vote of the city
government, or by the nature of the
duties and functions with which they
are charged, by their officers, to act
upon the general subject-matter, and
especially if the act was done with
an honest view to obtain for the pub-
lic some lawful benefit or advantage,
reason and justice obviously require
that the corporation in its corporate
capacity should make good the dam-
ages in consequence of the acts thus
done. It would be equally injurious
to the individual sustaining damage,
and to the agents and persons em-
ployed by the city government, to
leave the party injured no means of
redress except against agents em-
ployed. It would simply be allowing
a circuitous remedy, one against the
officers, and they to be indemnified
by the county. It is believed the
safer, wiser and juster course is to
allow direct action by the individual,
treating it in the nature of a cumu-
lative remedy for taking or damag-
ing his property.” -
In another Illinois case the court
Says that the principle that the pub-
lic has no right so to use its own as
to injure another, applies as well to
townships as to incorporated cities.
Tearney v. Smith, 86 Ill. 891.
I See CONTRACTS.
2 State v. Yeatman, 22 Ohio St. 546;
Board v. Allman, 142 Ind. 573.
*The principles governing witna,
wires acts apply equally to all corpo-
rations, and for convenience they
will be stated with the treatment of
municipal corporations, in the next
chapter.
4 Parr v. Village of Greenbush, 72
N. Y. 463; McDonald v. City of New
§ 442.] Local, SELF-GOVERNMENT— PUBLIC CORPORATIONS. 525
So a public corporation cannot be held liable because it ac-
cepts and receives the benefit arising from a contract of this
kind. The private individual must look to it that the statu-
tory requirements are followed." -
SEC. 442. County Officers.--The existence of a county or tow
is seen and felt through its representative system and through
its officers. The liabilities of a county, such as they are, arise
from the acts, Omissions or transactions with county officers;
so that in reality the laws of counties and towns and all the
public subdivisions may, to a large extent, be written around
the law of public officers.”
The Supervisors.-The usual officers of a county are a gov-
erning county board, called a board of supervisors or county
commissioners. To this board is committed the oversight of
all the principal affairs of the county proper. -
The Sheriff of a county was formerly an officer of great
dignity and power, having judicial as well as executive func-
tions; but now the sheriff is really one of the state officers,
elected and paid by the county, whose principal duty is the
execution of judicial process, civil and criminal.
York, 68 N. Y. 23; Bloomfield v.
Charter Oak Bank, 121 U. S. 121;
Richard v. Warren, 31 Iowa, 381.
1 Heidelberg v. Francois, 100 Mo.
69; Brown v. First Nat. Bank, 142
N. Y. 510. If a county authorized
by law to appoint a commissioner to
build a bridge, according to a plan
and with materials directed by the
County Court, appoint a commissioner
with authority to build the bridge
according to such plans as he shall
think proper, the appointment is ille-
gal and his acts are not binding upon
the County. County of St. Louis v.
Cleland, 4 Mo. 84.
“When a statute confers on a pub-
lic officer the power to make a con-
tract, and requires the officer to ad-
vertise for bids before making the
Contract, such advertising is a con-
dition precedent to the grant of au-
thority, and without the advertising
there is no authority; hence con-
tracts so made are held to be void.
Shumm v. Seymour, 24 N. J. Eq. 153.
Eacceptions to the Rule.—But when
a general statute requires such ad-
vertising, it should not be strained
beyond the reasons which support
it; SO such a statute has been held
in other jurisdictions not to apply to
a patented article, nor to the furnish-
ing of an article such as gas, of which
One Company has a monopoly, nor to
articles dependent for value upon
the personal skill of the manufact-
urer, such as fireworks; nor to pro-
fessional services. Hobart v. City of
Detroit, 17 Mich. 246; In re Dugro,
50 N. Y. 513; Harlem Gas Co. v.
Mayor, etc., 33 id. 309; Detwiller v.
City of New York, 46 How. Pr. 218;
Smith v. Flagg, 5 Abb. Pr. 232.” City
of Hartford v. Hartford Elec. Light
Co., 65 Conn. 324–34.
2 See Mechem, Public Officers. The
whole subject of municipal officers
is treated in this work.
526 LOCAL SELF-GOVERNMENT—PUBLIC CORPORATIONS. [$443.
The Coroner is an officer of equal antiquity. The duty of
the coroner is to inquire into the cause of death of those dying
mysteriously and present the case to the grand jury. He may
perform the duties of sheriff in the absence or disability of that
Officer. - $ºw,
The Treasurer has the care and custody of the county funds,
with the supervision of the collection of taxes, state as well as
county. -
A Clerk is provided in most counties, who is the recording
officer of the official transactions of the county. He also per-
forms the function of clerk to the county, surrogate or Orphan's
court, which has charge of matters of probate, lunacy, guardian-
ship, and the like.
A Recorder is an officer provided in each county for the reg-
istration of deeds of transfer, and such private contracts and
conveyances as are by law required to be placed of record. He
may or may not combine in his office the office of recorder and
clerk of the ordinary court, circuit or district, wherein contested
litigation is commonly had, in which case he may be denom-
inated circuit or district, or clerk of the court of oyer and
terminer, as the case may be. He has in his custody and posses-
sion the records of his court and the records of transfers, etc.
A Superintendent of Schools is provided in most counties. His
duties, as the name implies, are the supervision of the public
schools of the county, etc.
Additional Officers.--In proportion to the size and complex-
ity of the affairs of the county, the officers may be multiplied,
and separate courts and clerks erected for matters of probate
and the assessment of taxes and special assessments for local
improvements, wherein judicial proceedings must be had.
County commissioners are the police tribunals of the county,
whose functions can only be ascertained by an examination of
local constitutions and statutes.
SEC. 443. Township Officers.-The local affairs of the town
require the interposition of no legislative body as such, but are
generally performed in a public meeting of the electors having
proper qualifications, which is known as a town meeting. This
is the most democratic institution existing in America.
The general affairs and policy of the county for the term
intervening between these meetings is provided for at this town
§ 444.] Local, SELF-GOVERNMENT— PUBLIC CORPORATIONS. 527
meeting. These meetings are established by statute, and are
organized by the electors coming together and choosing one
of their number a moderator, after which business proceeds in
the manner which has been termed “town-meeting style.”"
Pſighway Commissioners.-The highways and bridges of the
township are generally under the supervision of a board of
highway commissioners. gº
Justices of the Peace.—Local judicial establishments known
as justice courts, or magistrates' courts, are a part of the sys-
tem of town organization. These courts have jurisdiction of
small offenses and petty litigation.
Constables.— For the service of process and the conservation
of the peace, constables are elected in every town.
Taag Assessor and Collector.— The assessment of the taxes.
levied by the state or county boards, or required by the town
meetings, is laid by a township assessor and collected by an-
other officer, called a township collector, who turns over the
money to the county treasurer and receives his voucher for the
S8,0162. .
Poundmaster.—The keeper of the township pound is com-
monly regarded as the least exalted of the officers, state or
national. * , . .
SEC. 444. Liability of Officers to Private Actions.—The sub-
ject of liability of public officers to private actions on account
of the omission of a public duty, or the negligent or improper
manner of performing it, has been thrown into some confusion
on account of attempts to apply early English cases, based upon
different reasoning and different principles, to our local offi-
CerS.
It was formerly held that no action could be maintained
against an officer for a mere non-feasance, and at One time it.
was supposed that none would lie for negligence in the perform-
ance of duty, in the absence of bad faith or malice.” But it is
now thoroughly well settled that a public officer is individually
liable for a negligent or wilful injury, and in many cases for
the negligent omission to perform a specific duty where he has
means at his command to perform it.”
1 Amte, sec. 435. 8 Weise v. Tate, 45 III. App. 626.
2 Bartlett v. Crozier, 17 Johns. 340. When an individual sustains an in-
See Nagle v. Wakey, 59 Ill. App. 198. jury by the misfeasance or non-ſeas-
528 LoCAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. [$444.
The rule as to the liability of public officers whose duties are
specific and ministerial, as distinguished from judicial and dis-
Cretionary, is universal, and applies to all public officers of
Whatsoever character, or to all persons having a duty imposed
upon them by public law.
Postal officers, supervisors of election who refuse the right
of Voting,” commissioners of highways, inspectors of provisions,
tax officers, sheriffs,” constables and policemen are individually
Iiable under this rule. In fact the rule is universal that there
is no wrong inflicted by one individual upon another for which
the injured party may not have a remedy. “It is immaterial
that the duty is one imposed on public grounds, and therefore
primarily a duty owing to the public. The right of action
springs from the fact that the private individual receives a
special and peculiar injury from which it is the purpose of the
law to protect him.” “
Judicial Officers.-Judicial officers are wisely exempted from
liability on account of ignorance, negligence or mistake, a rem-
edy in such cases being generally afforded by appeal; but even
judicial officers are held responsible for malicious acts, or for
acts which are beyond their jurisdiction.”
ance of a public officer, state or local,
who acts, or omits to act, contrary to
his duty, the law gives redress to the
injured party by an action adapted
to the nature of the case. Adsit v.
Brady, 4 Hill, 632. “Actions to re-
cover damages resulting from in-
juries caused by defects in the public
highways are of comparatively mod-
ern Origin. As late as the case Of
Garlinghouse v. Jacobs, 29 N. Y. 297,
the whole subject of the liability of
the commissioner in such cases was
elaborately examined, and it was
held that he was not liable under
any circumstances. Subsequently
the court receded from this position
in Robinson v. Chamberlain, 34 N. Y.
389; and in the case of Hoover v.
Barkhoof, 44 N. Y. 113, the liability
Of the commissioner for such injuries,
when resulting from his own negli-
gence, was asserted and established.”
Lane v. Town of Hancock, 142 N. Y.
510.
1 Teall v. Felton, 1 N. Y. 537; 12
How. 284.
2 Ashby v. White, Ld. Ray. 938;
Lincoln v. Hapgood, 11 Mass. 350;
Blair v. Ridgley, 41 Mo. 63; 47 Am.
Dec. 248.
8 Bank v. Waterman, 26 Conn. 323.
4 Raynsford v. Phelps, 43 Mich. 342.
5 Id. If a judicial officer acts, no
matter how erroneously, within the
Scope of his jurisdiction, he has im-
munity; but if he transcends the
limits of his jurisdiction he is a tres-
passer. Sprague v. Birchard, 1 Wis.
464; Bradley v. Fisher, 13 Wall, 335;
Thomas v. Hinsdale, 78 Ill. 359. There
must be jurisdiction (a) of the sub-
ject-matter of the suit; (b) of the
person of the defendant; (c) of the
particular process, or punishment
inflicted. Gummon v. Raymond, 1
Conn. 42; Gurney v. Tufts, 37 Me.
133. This subject will be fully in-
vestigated under the title “Trespass.”
$ 445.] Local SELF-GOVERNMENT— PUBLIC CORPORATIONS. 529
SEC. 445. De Facto and De Jure Officers.-Intricate and
serious questions occasionally arise as to the validity of trans-
actions which have taken place under supposed official author-
ity, and the question arises in various phases.
Sometimes it is discovered that supposed official action has
been taken extending over many transactions and along period
of time, but that in fact there has been no lawful office to fill,
either because the law creating the office is unconstitutional,
or the office has been changed by law and the change not dis-
covered by local authorities.
Again, the officer is found to be ineligible or not legally
elected or qualified. These and similar instances are known
in the law as de facto offices or officers.
The mode of questioning the validity has a bearing on its
Solution. For instance, if the right to hold the office is directly
attacked by quo warranto proceedings, the question is confined
to the strict question of constitutionality or regularity and
qualification; but if the official action arises collaterally and
is questioned as a defense to official action, or by an Officer to
escape official liability, that is known as a collateral attack.
Judge Van Vleet, in his work on Collateral Attack, main-
tains that there may be a de facto officer where there is not a
legal but simply a de facto office. He, says: “If it is neces-
sary, in order to guard the rights of the public, to hold the acts
of an actual, although unlawful, incumbent of a judicial office
valid, as being done by an officer de facto, then, a fortiori, is
it necessary to hold an actual judicial tribunal, created under
the forms of law, sustained by the power of the state, and set-
tling rights and titles, a tribunal de facto.” And he concludes
that action by such a de facto tribunal, so far as taken, cannot
be held absolutely void; thus, a judge appointed by the gov-
ernor, or a city council, or transferred to another district, or a
probate clerk or district attorney appointed by authority of
an unconstitutional statute, and county officers elected in a
new county before the law organizing it went into effect."
There may be doubt as to the correctness of this language if
applied to all situations, and the opposite rule is contended for
by Mr. Mechem.”
1 Van Vleet, Collateral Attack, 2 Mechem, Public Officers, Š 324–
pp. 38–51; cited, State v. Gardner, 54 27, relying upon cases all of which
Ohio St. 24. - are reviewed in State v. Gardner,
34
530 LooAL SELF-GovKRNMENT— PUBLIC CORPORATIONS. [$446.
The character of the trar action, its importance, the serious-
ness of it, do not affect the question; and it must be regarded
as settled that the acts of de facto tribunals, and de facto in-
cumbents of de jure offices, so far as completely executed, must
be enforced."
The right of the incumbent to hold office or exercise the of
ficial duty can be questioned only by the state, with the qualifi-
cation, of course, that it is the duty of the state, through its
attorney-general and subordinate prosecuting officers, on rela-
tion of a private individual in many cases, to question the
right of the incumbent.”
In any case where the officer claims rights affirmatively
by virtue of his office, he must prove himself to be a de facto
Officer.”
SEC. 446. Official Bonds.--It is generally provided that offi-
cers shall furnish bonds for the faithful performance of their
duty; and it occasionally happens that an official bond is given
where there is no statute requiring it, or a bond not exactly in
accord with the statute; but it has been held that a bond not
executed in accordance with the statute may still be held good
as a common-law obligation.*
The liability of sureties upon an official bond is peculiar; and
while it cannot extend to any other office than that held by the
incumbent, it is sometimes held to extend to acts performed
before the period of time for which the particular bond was
executed.” -
The liability of the sureties on the bond cannot always with
supra. See Norton v. Shelby Co., 118
TJ. S. 425.
1 So in a prosecution for bribery it
cannot be defended by attacking the
constitutionality of the law establish-
ing the office of the incumbent upon
whom the attempt is made. State v.
Gardner, 54 Ohio St. 24 (1896). This
case contains a valuable examination
of the question, with citation of many
cases. There is a dissenting Opinion,
thus rendering the case a presenta-
tion of both sides of the question.
Even in a capital case the defense
is equally unavailing. Coyle v. Com.,
104 Pa. St. 117; Leech v. People, 122
Ill. 420.
2 People v. Bangs, 24 Ill. 184. If a
person usurps an authority to which
he has no title or color of title, his
acts are simply void; but a colorable
title to an office can be examined
only in a mode in which the officer
is a party. State v. Gardner, 54 Ohio.
St. 24.
3 People v. Webber, 86 Ill. 283.
4 Governor v. Allen, 8 Humph. 176.
In United States v. Tingey, 5 Pet.
114, it was held that a voluntary bond.
to the United States was valid and
obligatory. See Mechem, Public Offi-
cers, sec. 273; Moses v. United States,
166 U. S. 571. &
5 Mechem, Public Officers, Sec. 287.
§ 447.] LooAL SELF-GovKRNMENT—PUBLIC CoRPORATIONS. 531
certainty be known in advance, because the legislature may
impose new duties on the office and new obligations; and it has
been held that all laws enacted during the continuing contract
of an official bond are a part of the contract, and that the
obligors entered into the agreement in view of the possible and
probable modification by the legislative branch of the govern-
ment." s -
Generally speaking, the bond is executed for the faithful
performance of official duty, and usually reads, “for all acts
done and performed by virtue of his office; ” but the liability
is broader than a narrow construction would indicate, and ex-
tends to all negligent omissions” as well as to all acts done by
virtue of the Office, although unlawfully done, and constituting,
because of the unlawfulness, a trespass.”
It occasionally happens that public money is lost where there
is no lack of diligence or culpable fault on the part of the offi-
cer, as in the case of its deposit in a bank and the bank failing,
or where it is feloniously taken from the officer by theft or
robbery. - -
The courts are by no means harmonious on the question of
liability, but the terms of the bond, the question whether the
relation of debtor and creditor is held to exist, or the view
which the court takes of public policy in such cases, will in-
fluence the result.*
SEC. 447. Public Schools.”—In treating the subject of local
self-government, the New England township, with the town
1 State v. Grizzard, 117 N. C. 105.
* Young v. Connelly, 112 N. C. 646.
See State v. Grizzard, supra.
8 Mechem, Public Officers, sec. 284,
where authorities pro and con are
cited; and still later, examination
quite exhaustive is had in Risher v.
Meehan, 35 Weekly Law Bul. 18
(Ohio Cir. Ct. Rep.).
4 In United States v. Prescott, 3
How. 578, the Officer was held liable
although the fund was lost by felony.
In Fairchild v. Hedges, 14 Wash. 117,
a county treasurer was held liable
notwithstanding the fund was lost
by bank failure without his negli-
gence, relying upon the strict liabil-
ity to keep the money safely. In
State v. Copeland, 96 Tenn. 296, the
officer was held exempt on showing
due care in the custody of the funds.
These cases contain very exhaustive
citation of the authorities and reason-
ing on the question. The above is real
conflict, based on a fundamental dif-
ference in principles. An author in
such a Case cannot harmonize. One in-
vestigating the question to determine
liability must inquire which princi-
ple the tribunal of the state where
the question arises has adopted. If
the question is new in the state,
what is the better reasoning.
5 Public Schools are not, like towns
532 LOCAL SELF-GOVERNMENT — PTBLIC CORPORATIONS.
[$ 447.
meeting, has been spoken of as an institution. It has been
designated as an institution rather than an instrument, intend-
ing thereby to convey the idea that it was a voluntary original
growth rather than the creation of a superior legislative power.
It has also been indicated that such an organization, with
the quality of local self-government possessed and exercised by
the townships, was unknown in England. Here, local self-gov-
ernment existed as a right; there, whatever local jurisdiction
existed was granted as a privilege; and in theory it never ripened
into a right, excepting in the case of certain counties palatine
and certain incorporated communities, where the right was held
to rest upon the contract of the charter.
County organization originally differed essentially, and lacked
the quality of being an original constituent body instituted ex-
pressly for local legislation over local affairs and as an organ-
ization to exercise the right of representation.
|Not less unique and distinctive in its organization, and equally
powerful in its effect upon the scheme of local self-government
which grew up in New England, was what passes under the
name of “common school.”
Schools were not unknown, education was not originated, in
the colonies; but the public school system is the outgrowth of
a new policy inaugurated in New England.
The free-school system of the American colonies was opposed
to the policy of home government. It was fostered as carefully
as was the religious institution or the town meeting."
The term “common school’” does not indicate the character or
extent of education furnished. Its meaning is here associated
with the most dignified sense in which the word common so fre-
Quently appears — the common law, the common weal, common
right, common school; that is, open and free to all. -
and counties, an essential in the plan
of local government; but they are so
intimately associated with it as to
permit a mention of them at this
place. See Cooley, Const. Lim. 224.
1 In 1671 an inquiry was sent to all
the Colonies concerning the educa-
tion of the people. Burkely, governor
of Virginia, responded: “I thank God
there are no free schools nor printing,
and I hope we shall none of these
hundred years, for education has
brought disobedience and misery and
Sects into the world, and printing
has divulged them and libels against
the best government. God keep us
from both.” From Connecticut the
reply was: “One-fourth of the annual
revenue of the colony is laid out in
maintaining free schools for the edu-
cation of our children.”
$ 448.] LocAL SELF-GOVERNMENT— PUBLIC CORPORATIONS. 533.
---- ~
Public schools, however, are not regarded as of local interest
only, but as of general concern, and under the state control
rather than the control of local authorities, although the ad-
ministration is largely committed to their hands; so that it is:
within the province of the legislature to compel towns, cities.
or counties to maintain schools and to raise funds for their
maintenance." -
It is not necessary to a public school that it be entirely free.
If the use is of such a nature as concerns the public, and the
right of its enjoyment is open to the public upon equal terms,
the use will be public whether compensation be exacted or
not.”
SEC. 448. Nature of Educational Corporations.—It is often
an extremely difficult matter, even at this time, to determine
whether an incorporated institution for educational purposes,
receiving aid from the state, is a public or a private institution.”
In reference to these, the same question is discussed that
was so elaborately argued in the Dartmouth College Case.
All agree that schools when incorporated are charitable and
eleemosynary, and that a gift designed to promote public good
by the encouragement of learning, of science and the useful
arts is a charity; * and Lord Holt remarks, “There is no man-
ner of difference between a hospital and a college — both are
eleemosynary.” "
But, notwithstanding the public interest involved, and even
the public support and assistance which is given, if the founda-
tion is private the institution may still be a private corporation.
A remarkable illustration of this principle is the holding of
1 Revell v. Mayor of Annapolis, 81
Md. 1. See Cooley, Const. Lim. (4th
ed.) 223, note.
2 Gerke v. Powell, 25 Ohio St. 229;
Bichard v. Raymond, 92 Ill. 617.
8 See Dartmouth College Case, 4
Wheat. 518, and an equally interest-
ing case, Regents v. Williams, 9 Gill
& J. 1.
4 Mr. Justice Grey, when on the
Massachusetts supreme bench, de-
fined a charity in its legal sense as
“a gift to be applied consistently
with existing laws for the benefit of
an indefinite number of persons,
either by bringing their minds or
their hearts under the influence of
education or religion by relieving
their bodies from disease, suffering
or constraint, by assisting them to
establish themselves in life, or by
erecting or maintaining public build-
ing or works, or otherwise lessening
the burdens of government.” Jack-
son v. Phillip, 14 Allen, 555.
5 Phillips v. Bury, 2 Term Rep. 353.
See Academy v. Harvard College, 12
Gray, 594,
534 Local SELF-GovKRNMENT— PUBLIC CORPORATIONS. [$ 449.
the Illinois supreme court that the state normal school, although
a general charity, was a private corporation."
SEC.449. School Property.—Public-school property, irrespect-
ive of its derivation, belongs to the state, notwithstanding sub-
ordinate bodies are created, and even incorporated, to handle
and control the fund for the use of the people. The general
legislature does not part with the power to control the fund
nor to control the system of education.”
Cities are allowed to become trustees for the purpose of re-
ceiving charitable bequests for educational purposes, upon the
principle that the trust is public in its nature and of the same
character which is habitually placed upon cities; and if the
body which is given control is a distinct corporate body, it is
nevertheless public, and subject always to the control of the
This is true as to city schools of any grade or denomina-
State.
tion.”
1 Board of Education v. Bakewell,
122 Ill. 339. It is difficult to define
the meaning of the term “common
school.” Ordinarily it implies one
which begins with the rudimentary
elements of an education, but it may
embrace a good deal more. The pecul-
iar context of a statute, if it be a ques-
tion of statutory construction, may
affect the question. Powell v. Board
of Education, 97 Ill. 375; Richard v.
Raymond, 92 Ill. 617. The Missouri
supreme Court says: “The term ‘com-
mon,’ applied to Schools, is used to
denote that they are open and pub-
lic, rather than to indicate the grade
of the school, or what may or may
not be taught therein. The term
“school,” eac vi termini, does not imply
restriction to the rudiments of edu-
cation.” Roach v. Board of Direct-
Ors, 77 Mo. 484.
* City of Chicago v. People, 80 Ill.
386.
* Revell v. City of Annapolis, 81
Md. 1. See Conover v. Parker, 57
N. J. L. 631; Vidal v. Girard’s Ex’r,
2 How. 127; Philadelphia v. Fox, 64
Pa. St. 189. **
CHAPTER XXV.
LOCAL SELF GOVERNMENT—MUNICIPAL CORPORATIONS.
SEC. 450. Scope of the Treatment.—In approaching the sub-
jeet of “municipal corporations,” the fact should be recognized
that there is no lack of books upon the subject, and that some
of them leave little to be desired as a general treatment of the
subject.
There is yet something to be added upon the fundamental
principles governing these corporations, and a concise state-
ment of these with the general outline of the subject may
enable the student more readily to grasp the fundamental prin-
ciples governing the subject, and thereby to distinguish and
harmonize the mass of legal decisions and obiter with which
the opinions abound, which otherwise incumbers and confuses,
rather than aids to an understanding.
It will therefore be the endeavor in this chapter to present
in the briefest possible form what are conceived to be the funda-
mental principles of the law of municipal corporations.
As to some of these it will be observed that the author differs
diametrically on several fundamental positions from those who
have in recent years written on this subject.
JDéfinition.— A municipal corporation is an artificial person
created by charter, being conferred upon an existing aggregation
of persons, granting to the new entity powers and privileges
of a public nature which they did not before possess, and im-
posing additional duties and liabilities.
In all decisions imposing liability upon cities on account of
negligent acts of officers, the corporations are called “Volun-
tary;” in many decisions involving questions of legislative con-
trol, it is affirmed that the legislature can create or destroy at
will, and that they are “involuntary.””
1 Shumway v. Bennett, 29 Mich. poration that is not the direct repre-
451–57. See Hill v. Boston, 122 Mass. sentative of the people of its locality.
344. O'Leary v. Board, 79 Mich. 281. Such
2It has been settled in Michigan boards do not represent the state.
ithat there can be no municipal cor- Board v. Auditors, 68 Mich. 576.
536 LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. [$451.
SEC. 451. Creation, Control and Dissolution.— Attention has
heretofore been called to the proposition that all municipal cor-
porations—that is, incorporated cities and villages—are pure
Corporations.
Cases have been cited showing a liability upon such corpora-
tions on account of negligent acts of servants and agents, based
upon the fact that they are voluntary corporations, while an
immunity exists in favor of the state, unincorporated towns
and villages because they are involuntary corporations—mere
agencies of the state, having their duties imposed upon them
for the benefit of the general public."
It was a universal rule of corporation law in England that
no society or number of men could be compelled to be a corpo-
ration. This is admitted without dissent to apply to all private
corporations.” -
It is laid down, however, by our most distinguished writer
On the subject, that this rule that a corporate body cannot be
constituted except by consent does not apply to statutes creat-
ing municipal corporations.” -
IHe states as a rule of our law, that a municipal corporation,
including a city, may be created, altered, enlarged, or entirely
destroyed, without the assent of the inhabitants of the district.
This proposition, with its logical inferences, deductions and
conclusions, is of so startling a nature as to suggest a doubt in
any inquiring mind.
Laying as it does at the threshold or foundation of the law
of municipal corporations in perhaps its most important branch,
the proposition may not be passed unquestioned."
After an examination of the authorities cited by the learned
author above named and those who follow and quote him, to-
gether with the English cases and other American authorities,
Second. One has a charter, the other
not. What does a charter mean or
1Ante, sec. 439; Elmore v. Drainage
Dist., 135 Ill. 269.
21 Dill. Mun. Corp. (4th ed.), Sec. 44.
3 Id.
4The proposition renders illogical
the following rules:
First. Municipal corporations dif-
fer from quasi-corporation 9ecause
one is voluntary and the er invol-
untary; hence a differer, e of liabil-
amount to if that which is called a
charter exists at the pleasure of the
legislature?
Third. Ilocal self-government, as
an essential principle in Our System,
is destroyed by incorporation with-
out consent, and control without con-
Sent.
ity.
§452.] Local SELF-GovKRNMENT—MUNICIPAL CORPORATIONS. 537
the writer is constrained to dissent from the proposition, and
especially from its logical sequences." Such a rule may have
had a theoretical existence as a power of parliament, which
was the constituent body-politic of England, but it never had
theoretical existence or practicable application in the United
States.
The proposition is one of such serious moment, in its most
important phase, as to require more than passing notice.
SEC. 452. Local Government in Cities is a Right.—No such
rule can be found in the English cases prior to our Revolution,
not even as to the power of parliament, and applied specifically
to the incorporation of cities.”
Chancellor Kent announces the proposition as a part of the
law, without the exception of public corporations, which he is
treating in the same connection, that it requires the acceptance
of the charter to create a corporate body; for the government
cannot compel persons to become an incorporated body without
their consent, or the consent of at least a major part of them.”
1Not a single case cited by Dillon,
Beach or Mr. Elliott supports the
proposition. In fact no legislation
was involved in any of the cases
which attempted to create or repeal
a charter without the assent of the
people of the locality. In several
cases where the right of local self-
government of the municipality was
encroached upon by legislative pro-
visions, they were held void.
2.In Rutter v. Chapman, 8 M. & W.
36–38 (1841), 7 Eng. Ruling Cases, 179, it
is stated that the consent of boroughs
was necessary to make them munici-
pal corporations. See on the Eng-
lish law, Shumway v. Bennett, 29
Mich. 457, 458; 2 Cooley's Blk., App.,
Local government in England and
same in the United States.
In an early Massachusetts case it
is said: “In Bagg’s Case, Roll's Rep.
224, it seemed to be agreed by the
Court that a patent procured by some
persons of a corporation shall not
bind the rest, unless they assent.
And in Brownlow's Reports, 100,
there is this passage: “It was said
that inhabitants of a town cannot be
incorporated without the consent of
the major part of them, and an in-
corporation without their consent is
void.” In Comberbach, 316, Holt,
speaking of a new charter made to
the city of Norwich by Henry IV.,.
and confirmed by Charles T.I., says the
new charter had been void if the cor-
poration had refused it; but when
they accept it, and put it in execu-
tion, it is good.” If these principles
were correct in England when pre-
rogative ran high, and the crown or
parliament could not force charters.
or patents upon the subject without
his assent, surely in this free coun-
try, where the legislature derives its
power from the people, such author-
ity cannot be contended for. Ellis.
v. Marshall, 2 Mass. 277.
3 1 Kent, 277. This sentence can-
not apply to a private Corporation,
because a voluntary association of
individuals existing under contract
cannot be compelled to be a corpora-
tion without the consent of all.
538 Local SELF-GovKRNMENT——MUNICIPAL CORPORATIONS. L$453.
In no case cited by the learned authors above named, wherein
broad expressions of the plenitude and absolute power of the
legislature have been indulged in the dicta or opinions, has the
question been involved.
The unwisdom of such general expressions in judicial opinions
which do not involve the proposition needs only to be mentioned
to be apparent." -
No instance has been cited involving an attempt of the legis-
lature to create or destroy a city without local consent. It may
readily be admitted that the administration of governmental
powers, which the legislature have a right to impose upon its
citizens, may be imposed upon the inhabitants of any locality
without their consent, and that such a power may be with-
drawn at will; but the proposition that our local municipal
Organizations—townships, counties and cities—exist at the be-
hest of the legislature only, and only for so long as the legis-
lature sees fit, is a proposition finding no support in any decis-
ion where the point has been involved.”
SEC. 453. Cities Are Not Created by the Legislature.—Wher-
ever the question has arisen in a case by the inhabitants of a
1 Mr. Justice Cooley well says:
“Now, it must be conceded that the
judicial decisions and law writers
generally assert that the state creates
the municipal bodies, endows them
with such of the functions of corpo-
rate life and intrusts them with such
share in the local government as to
the legislative judgment shall seem
best; that it controls and regulates
their action while they exist, sub-
jects them to such changes as public
policy may dictate, and abolishes
them at discretion; in short, that the
Corporate entities are mere agencies
which the state employs for the con-
venience of government, clothing
them for the time being with a por-
tion of its sovereignty, but recalling
the whole or any part thereof when-
ever the necessity or usefulness of
the delegation is no longer apparent.
This I understand to be the accepted
theory of state constitutional law as
regards the municipal governments.
We seldom have occasion to inquire
whether this amplitude of legislative
authority is or is not too strongly ex-
pressed, for the reason that its exer-
cise is generally confined within such
bounds as custom has pointed out, so
that no question is made concerning
it. But such maxims of government
are very seldom true in anything
more than a general sense; they never
are and never can be literally ac-
cepted in practice.” People v. Hurl-
but, 24 Mich. 44.
2 The question will never arise, be-
cause no constitution exists that does
not recognize local self-government
as a right, and provides for its con-
tinuance. But it ought not to be al-
lowed that the legislature has the
power in the absence of express limit-
ation. The decisions are all the other
way.
$453.] LooAL SELF-GovKRNMENT—MUNICIPAL CORPORATIONS. 539
city resisting the power of the legislature to take away their
local self-government, the plenary and absolute power of the
legislature has been subjected to positive and ample limitations.
The real truth is that these local Organizations do not derive
their existence from the legislature, and are above and beyond
the power of the legislature to destroy. Only their capacity to
legislate for general purposes is thus derived.
The proposition that they do, is nothing else or different than
an assertion that the people may be governed by the central
legislative power, and that whether they will or no, their local
government may be entirely swept away.
Lest there be a misapprehension upon this vital proposition,
abundance of caution requires the statement that the legisla-
ture may change corporate limits by decreasing the size, sepa-
rating and annexing territory, and by adding burdens of gov-
ernment and administration; but they may not destroy, and
this independent of express constitutional enactments.
This has been asserted in several great cases directly in point.
No decision to the contrary has been cited by any law writer."
As is well said by Justice Cooley: “We seldom have occa-
sion to inquire whether this amplitude of legislative authority
is or is not too strongly expressed, for the reason that its ex-
ercise is generally confined within such bounds as custom has
pointed out, so that no question is made concerning it. But
such maxims of government are very seldom true in anything
more than a general sense; they never are and never can be
literally accepted in practice.”
Theory in law consists in speculations concerning conditions
and relations which do not exist. Practical law examines
powers, rights and duties under existing institutions; and it is
perfectly safe to assert that under no constitution in the United
1 While extravagant expressions in
the opinions in cases involving the
exercise of functions falling far short
of forcing corporate existence upon
a community or taking away their
corporate existence abound, they are
as nothing compared with the di-
rect decision of able courts where
the point is directly involved. In the
case of Philadelphia v. Fox, 64 Pa.
St. 189, Sharswood, J., indulges in
the widest possible obiter. The de-
cision in that case is clearly right,
but there is no connection what-
ever between the question involved,
which relates to the control of the
legislature over the powers of a city
to act as a trustee (a question en-
tirely foreign to corporate existence),
and the question of power to create
and destroy.
? People v. Hurlbut, 24 Mich. 44.
540 LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. [$454.
States is it within the constitutional power of the legislature
to create local municipal corporations without the consent of
the inhabitants of the districts expressed in some form of suf-
frage.
It is a perversion of terms to say that the legislature has the
power to create and destroy, when the fact is that they have
no choice but to create and preserve.
They may authorize substitution and change, but they must
preserve to every locality its original inherent rights. Every
constitution in the Union requires that local organization for
the purpose of local self-government shall be established and
preserved.
SEC. 454. Legislative Power Over Cities is Limited.— Mr. Jus-
tice Christiancy, in a case involving the power of the legisla-
ture over the city local government, in substance said: “While
I have no doubt of the power of the legislature to abolish or
discontinue any of the separate boards previously existing in
the city, and to consolidate all their powers and duties in a
new board, and to impose new duties upon them, I concur in
the opinions of the chief justice and my Brother Cooley, that
the legislature had no power to make the appointment of the
members of that board as permanent officers for the full term; ”
and he holds in that case, in effect, that the local government
of a city must be by the city, of the city, and for the city.
The chief justice in the same case said: “We are therefore
compelled to consider the plain question whether the state
authorities have a right to assume unlimited control of all mu-
nicipal appointments. Judicial offices the constitution has dis-
tinctly provided for as elective; and they are local in their
action rather than in their nature. But as to other offices, the
power is plenary, or it does not exist at all. It may as well
include every office as any less than all. It may put all the
power into the hands of one person, as well as divide it among
several; and it may continue it for life as well as for a less
period.”
He concludes that cities, like other local corporations, are
put upon a popular basis entirely beyond legislative interfer-
ence, so far as local independence of action is concerned, say-
ing: “So that, if the people of cities have not similar immuni-
ties, we have in the same commonwealth two classes of citizens
§ 455.] Local SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. 541
with very different measures of freedom — one almost unlim-
ited, and one not much more than nominal.”"
SEC. 455. Legislative Charters May Add to, Define and Regu-
late, but Cannot Destroy.—“Incorporated cities and boroughs
have always, both in England and America, been self-govern-
ing communities within such scope of jurisdiction as their char-
ters west in the corporate body. According to the doctrine of
the common law, a corporation aggregate for municipal pur-
poses is nothing more or less than ‘investing the people of the
place with the local government thereof.” In the absence of
any provision in the charter creating a representative common
council, the whole body of freemen make the common council,
and act for the corporation at their meetings. It is agreed by
historians that originally all boroughs acted in popular assem-
bly, and that the select common council was an innovation,
which may have been of convenience or by encroachment. In
modern times cities have generally acted in ordinary matters
by such a select body. But townships still act by vote at town
meetings, and for many purposes connected with taxation the
people of cities usually have the same privilege. But whether
acting directly or by their representatives, the corporation is
in law the community, and its acts are their acts, and its offi-
cers their officers. The doctrine is elementary that all corpo-
ration officers must derive office from the corporation.” This
has been from time immemorial settled law.”
He adds: “Our constitution cannot be understood or carried
out at all, except on the theory of local self-government; and
the intention to preserve it is quite apparent. . . . It can-
not be that the state can control these bodies by sending its
own agents there, and it cannot be possible that it was con-
templated that any members of that board should be selected
by a different mode of election or appointment from the rest.
It is impossible to read the constitution without find-
ing the plainest evidence that every part of the state is to be
under some system of localized authority emanating from the
people.
1 People v. Hurlbut, 24 Mich. 44. matters of general concern, like the
* That is, not only what they had state police.
before incorporation, but a greater & Kyd, ch. 3, Sec. 8.
franchise, jurisdiction or liberty over
542 LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. [$455.
“This is no mere political theory, but appears in the consti-
tution as the foundation of all our polity. There is no middle
ground. A city has no constitutional safeguards for its people,
or it has the right to have all its officers appointed at home.
Unless this power is exclusive, the state may manage all city
affairs by its own functionaries.”"
In the dissenting opinion in the case just cited in the note,
which opinion has now the sanction of the New York court,
Mr. Justice Brown stated that cities were permanent elements
in the frame of government, and so treated in the instrument
that creates government. Upon the plainest rules of interpre-
tation they are to be regarded as institutions of the state, dura-
ble and indestructible by any power less than that which gave
being to the organic law. They are subject to the control and
regulation of the legislature. It may enlarge or circumscribe
their territorial limits, increase or diminish their numbers, sep-
arate them into parts, and annex some of the parts to parts of
others; but they must still assume the form and be known and
governed only as counties, cities or towns, because their distinct-
ive character and attributes cannot be changed or destroyed
without confounding the entire scheme of civil government.”
The state at large is, and ever has been, an aggregate of these
local bodies. They have habitually and uninterruptedly exer-
cised many of the powers and functions of government.
1 In People v. Draper, 15 N. Y.
532, a case involving legislative con-
trol over a city, and hence directly
in point, and a case in its decision
going to the extreme verge in allow-
ing legislative control, and, by subse-
quent decisions of the same state,
stated to be beyond the extreme in
upholding legislative control over
cities, the prevailing opinion says:
“It cannot be denied that an act of
the legislature which should propose
to abolish counties would be hostile
to the arrangements of the constitu-
tion. There are a great many pro-
visions of that instrument, to the
execution of which counties are in-
dispensable. But there is
nothing in it which requires that
these local divisions should always
possess the same measure of admin-
ſistrative power, or that local func-
tionaries should always exist within
them, possessing the same func-
.tions as when the constitution was
adopted. The counties and cities
must mot only be preserved, but the
legislature must do nothing respect-
ſing them, which will render them, less
suitable for the purposes which they
are recognized and employed by the
constitution. All the arrangements
to which counties and cities are sub-
Servient or instrumental, or in which,
their agency is contemplated, must
have their free course unobstructed
and wnembarrassed by legislation.”
2 People v. Hurlbut, 24 Mich. 44.
§455.] LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. 543:
“These considerations lead me to the conclusion that it was
designed to place these civil divisions and the powers of ap-
pointment, election and local administration which the people
then exercised beyond the reach of legislative abrogation and
destruction.”” -
In a later New York case the court says: “This right of self-
government lies at the foundation of our institutions, and can-
not be disturbed or interfered with, even in respect to the
smallest of the divisions into which the state is divided for gov-
ernmental purposes, without weakening the entire foundation;
and hence it is a right not only to be carefully guarded by every
department of the government, but every infraction or evasion
of it to be promptly met and condemned, especially by the
courts, when such acts become the subject of judicial investi-
gation.” -
Indeed, the power to
control, the power to change and re-
model, is legislative; but the corporate existence for the polit-
ical purposes of self-government may not be destroyed.”
1 People v. Draper, 15 N. Y. 532.
See Barrett v. Brooks, 21 Iowa, 152.
In People v. Albertson, 55 N. Y. 50,
the prevailing opinion says: “To my
mind the dissenting opinion of Judge
Brown, concurred in by Judge Com-
stock, presents unanswerable argu-
ments why the decision should have
been different.” This has reference
to the case of People v. Draper, 15
N. Y. 532.
2 People v. Albertson, 55 N. Y. 50.
3 “In regard to public or munici-
pal corporations, Sound principle re-
quires that they should not be forced
upon the corporators against their
consent. Such is the well-settled
principle in England in regard to all
municipal corporations Created by
the crown. Though the king has the
power to create corporations, he can-
not impose them on his subjects
without their consent. Whether it
be an original act of incorporation,
or a charter by which the franchise
of a pre-existing corporation is al-
tered, it must be accepted by a ma-
jority of those to whom it is granted.
(King v. Amory, 1 Term Rep. 572;
Willcock on Corp. 30.) It is not de-
nied that a municipal Corporation
may be, either by the legislature or
by the British parliament, by virtue
of the plenitude of its power, im-
posed upon the corporators without
their consent. It doubtless may be
done. (Willcock on Corp. 25.) But
it would be alike against the genius.
of our government and the spirit of
the British constitution. It would
be, in the nervous language of Lord
Thurlow, an atrocious violation of
principle which would cut every
Englishman to the bone. Almost in-
variably in practice municipal char-
ters have been granted or altered by
our legislature in accordance with
the expressed will of the corporators.
The exceptions are very rare. [None
have been found of creating or de-
stroying.] They have occurred in
seasons of high excitement; they
cannot be reconciled to Sound prin-
ciple. They are to be regarded as
544 LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. [$456.
In Jèathbone v. Wºrth, decided in 1896, another case involv-
ing the power of the legislature to infringe upon the constitu-
tion of a city, it was stated by Gray, J., that “the theory of the
constitution is that the several counties, cities, towns and vil-
lages are, of right, entitled to choose whom they will have to
rule over them; and that this right cannot be taken from them,
and the electors and inhabitants disfranchised, by any act of
the legislature, or any or all the departments of the state gov-
ernment combined.” The legislature cannot constitutionally
deprive a municipality of its exercise of the functions as pre-
scribed by the law of its being.
That a legislature may not wipe out a city and substitute in
its place a system of government furnished by the central leg-
islative power is beyond question.
Justice O’Brien says: “If such a system can be introduced
into all the cities, towns and villages of the state, local self-
government must disappear, and government by the majority
in the legislature will be substituted in its place. It would be
difficult to suggest a contrivance better calculated to under-
mine and destroy the spirit of civic freedom than a statute
enacted by the central authority conferring powers upon a mi-
nority equal to those which can be exercised by the majority.” "
Conclusion.— In conclusion, therefore, it may be inquired, of
what utility is it to the student who wishes to understand our
system, to the lawyer who desires to advise a client or prose-
cute a suit, or to a court in determining upon disputed and
contested rights and liabilities, to assert that the legislature
may impose a municipal corporation upon the inhabitants of
a locality when no case where it has been done can be cited,
and where certainly under none of our present constitutions is it
permitted? Why assert that these local organizations may be
abolished, when the most can be said, under any circumstances,
is that their organization may be changed and modified, but
their existence must be preserved, and that certain governmental
powers only may be taken away?
SEC. 456. Effect of Change of Organization or Boundary.—
The change of form of a corporation does not change its iden-
beacons to be shunned, not as prece- 1 Rathbone v. Wirth, 45 N. E. Rep.
dents to be followed.” City of Pat- 15–25.
erson v. Society, 24 N. J. L. 385–397.
§ 457.] Local, SELF-GovKRNMENT—MUNICIPAL CORPORATIONS. 545
tity or destroy the corporation. Thus, where a township was
changed into a city, pending a suit against the township, the
court said the city was the same municipality. As a town it
had merely changed its machinery of government and its title
and offices, and is called a city instead of a town. But it is
still the same municipality. It consists of the same people, and
whatever corporate property the town possessed would devolve
upon the city. -
The city cannot change itself, nor can the legislature change
it in such a way that its real identity, with its rights and dis-
abilities, is destroyed." -
In the same case it was said: “To hold that it can set its
creditors at defiance by procuring the legislature to call it a
city instead of a town, and its officers mayor and aldermen,
instead of president and trustees, would be such a burlesque
upon justice that the proposition needs but to be stated to be
rejected.” g
It is for the legislature to say, upon the consolidation of two
or more localities, or their division, what proportion of the
debts shall be assumed by each and in what manner they shall
be paid.” - . -
SEC. 457. What May be Incorporated.— The society which
is to become a municipal corporation must be in existence be-
fore the charter is given. It is not understood that it is within
the province of the legislature to throw into the form of a mu-
nicipal corporation rural districts having no semblance of a
village or a city.” * *
It is likewise understood that in the annexation the legisla-
ture cannot empower municipalities to take in adjacent farm
lands, having no occasion or excuse for incorporation, and
thereby subject them to the unusual burdens and restraints of
municipal organization; * nor non-contiguous territory."
1 The boundaries may overlap town-
ship or county lines. State v. Cun-
ningham, 81 Wis. 521.
2 City of Olney v. Harvey, 50 Ill.
454. Old officers of a town may hold
over. Becker v. People, 156 Ill. 301.
See Mt. Pleasant v. Beckwith, 100
U. S. 526.
3 Mt. Pleasant v. Beckwith, 100 U.S.
527; Galesburg v. Hawkins, 75 Ill. 152;
Laramie Co. v. Albany Co., 92 U. S.
307. t
4 Shumway v. Bennett, 29 Mich.
458. See conflicting authorities, 27
L. R. A. 737.
5 Id. -
6 See Elliott, Mun. Corp., p. 41 et seq.,
§ 51.
35
546 LoCAL SELF-GovKRNMENT—MUNICIPAL CORPORATIONS. [$459.
Sec. 458. Modes of Incorporation.—It has uniformly been
the practice in America to grant charters of incorporation on
the request of the inhabitants of villages or cities." This was
accomplished by a special charter granted by the legislature.
In recent years, however, the inconvenience occasioned by
special legislation and diversified forms of village and city or-
ganization has led to the enactment of general incorporating
acts, which provide for the manner in which localities may
voluntarily become incorporated. In most of the constitutions
the matter is regulated to some extent by restrictions against
special incorporations. .
SEC. 459. The City Charter.— The act of the legislature in-
corporating a city is its charter. All the governmental powers
in reference to matters which otherwise would fall within the
province of the state legislature necessarily come to the com-
munity through the medium of the charter.”
It was formerly questioned whether the state legislature had
a right to delegate its legislative power; and while it is an ac-
ceptable and reasonable doctrine that the state legislature can-
not delegate its legislative power to private persons or corpo-
rations, or other departments, or to mere agencies having no
natural connection with the locality,” it has long since been
well settled that a local community may be invested with a
larger measure of governmental power than a mere township.
or county organization entitles them to; and that even in mat-
ters which are really matters of general concern, like the police,
the power to conduct schools, etc., the power to tax in aid of
1 Shumway v. Bennett, 29 Mich.
451; City of Paterson v. Society, 24
N. J. L. 385.
* “The powers expressly granted to
a municipal corporation carry with
them such other powers as are nec-
essarily implied in or incident to
such grants, and it also possesses all
powers which all indispensable to
the attainment and maintenance of
its declared objects and purposes.
Municipal corporations are more
strictly limited in these respects
than private corporations. The test
of their right by implication to ex-
ercise any particular power is the
necessity of such power, not its con-
venience. If there is a reasonable
doubt as to its existence, it does not
exist. Pratt v. Borough of Litch-
field, 62 Conn. 112, 118; Ottawa v.
Carey, 108 U. S. 110, 121; Merrill v.
Monticello, 138 id. 673, 681.” Crofut:
v. Danbury, 65 Conn. 294–300; Bren-
ham v. Brenham Water Co., 67 Tex.
542.
3 Board v. Auditors, 68 Mich. 576.
See O’Leary v. Board, 79 Mich. 281.
$460.] LoCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. 547
public enterprises may be granted by charter to the inhabitants
of a municipal corporation.
Indeed, the legislature has a larger power than this, irre-
spective of the question of incorporation. The legislature has
the right to impose the burden of public enterprises upon the
public at large, and, in the absence of constitutional limita-
tions, to discriminate within a reasonable degree that a local-
ity having the special benefits shall sustain special burdens;
and it is entirely competent for the legislature to compel a lo-
cality to erect and maintain schools and bear the burden of
a local police, and all the special burdens of general govern-
mental duties which are felt principally in the locality; such
is immemorial custom in reference to counties and townships."
In that manner the general treasury is relieved, and a burden
more in accordance with the benefit is imposed.”
SEC. 460. Classes of Charter Powers.-The principal change
which is made in the incorporation of a municipality consists in
the institution of a local representative body, commonly called
the common council; and instead of possessing but a few powers
of a strictly local nature and having their local affairs decided
in a democratic assembly or town meeting, the affairs of a
municipal corporation are numerous and varied, and are regu-
lated and controlled by a representative legislative body.
In villages this body is called the village board, and in cer-
tain towns a certain amount of legislative power is even wested
in town commissioners;” but generally the powers of town com-
missioners are administrative rather than legislative in their
character. -
The inhabitants retain their original political rights. Al-
though the method of exercising them is changed, the charter
does not take away any power of local government which the
community before that time enjoyed.
1 Revell v. Annapolis, 81 Md. 1;
Commissioners of Reventie, 45 Ala.
399. The latter is an extreme case,
and carried the doctrine so far as to
incur the criticism of Judge Cooley
(Const. Lim. (6th ed.) 284, note); but
it was affirmed in Mobile v. Kimball,
102 U. S. 691. See Cooley, Const. Lim.
(6th ed.), 284, note, where are cited
many Cases applying the rule.
2 A city receives such special bene-
fits from the location of the County
seat within its limits as authorize
the imposition on such municipality
of the entire cost of procuring such
location and of the necessary public
buildings. Schneck v. City of Jef-
fersonville (Ind.), 52 N. E. Rep. 212.
8 See, for example, People v. Village
of Harvey, 142 Ill. 573.
548 LoCAL SELF-GovKRNMENT—MUNICIPAL CORPORATIONS. [$460.
The government is still a self-government, although a repre-
sentative system; but it is beyond the legislative power to ap-
point a city council in any other manner than by the choice of
the people."
The next important class of powers is, as we have heretofore
noticed, those matters of general public concern which are dele-
gated by the legislature to the locality.
It is in these, and these alone, that, properly speaking, the
municipality can be said to be the mere agent of the state; and
as to these powers, whatever diversity there may be in the de-
cisions of the various states in classing specific instances as
among those classes of powers, the courts are uniform in hold-
ing that, in the exercise of these powers as agents of the general
government, the municipal community as a whole is not liable
for negligent performance of those duties.”
1 See O’Leary v. Board, 79 Mich.
281, where the principle is stated.
2 The true test is the nature of the
duties. If they are governmental,
there is no liability.
An inspector of steam boilers ap-
pointed by the city. Mead v. New
Haven, 40 Conn. 72.
The liability of a municipal corpo-
ration for the acts of servants Or
agents depends upon the character of
the service. If the corporation ap-
points or elects them and controls
them in the discharge of their duties,
if it can continue or remove them or
hold them responsible for the man-
ner in which they discharge their
duties, and if their duties relate to
the exercise of corporate powers and
are for the peculiar benefit of the cor-
poration in its local or special inter-
est, they may be regarded as its
agents or servants, and the maxim
respondeat superior applies. But if
they are elected or appointed by the
corporation, in obedience to a statute,
to perform a public service, not local
or corporate, but because this mode
of selection has been deemed expedi-
ent by the legislature in the distribu-
tion of the powers of government,
they are not to be regarded as the
servants of the corporation, but as
public or state officers, with such
powers and duties as the statute con-
fers upon them, and the doctrine of
respondedt superior does not apply.
Police officers appointed by the cities
of New York and Brooklyn under a
state statute, for the purpose of pro-
tecting the Brooklyn bridge, are not
their agents or servants. 2 Dill. Mun.
Corp. (3d ed.), secs. 974, 975; McKay
v. City of Buffalo, 74 N. Y. 619; Maxi-
milian v. The Mayor, etc. of New
York, 62 N. Y. 160; Woodhull v. City
of New York, etc., 15 N. Y. 450. See
also the cases cited ante, sec. 439.
It was held in Detroit v. Blackeby,
21 Mich. 84, that cities are not usu-
ally liable unless made so by statute.
O'Leary v. Board, 79 Mich. 281. In
South Carolina a city is not liable for
defective streets except by statute.
Dunn v. Township, 43 S. C. 398. See
18 L. R. A. 105. In Thompson v.
Mayor, 52 N. Y. Sup. Ct. 427, the city
was exonerated from liability for the
negligent conduct of its employees
of the fire department. In Edgerly
v. Concord, 59 N. H. 78, the defend-
ant was acquitted of liability for an
injury caused by the negligent test-
ing of a hydrant. See Hafford v. New
§460.] LooAL SELF-GovKRNMENT—MUNICIPAL CORPORATIONS. 549
A third class of powers, occupying a middle ground as it
were between the two just mentioned, and yet not of such a
character as to be called strictly private, is the larger measure
of control over the streets and highways and buildings erected
and owned by the city for purely corporate purposes, and essen-
tial to corporate existence. These powers being voluntarily as-
sumed and partaking of the nature of private ownership, it is
uniformly held by courts which hold this power to be in its
nature voluntary and private, that there is a municipal liability
on account of injuries received by strangers by reason of neglect
in the management and control of these public instruments."
Redford, 16 Gray, 297, a case in which v. Evansville, 29 Ind. 187; Weight-
a hose carriage on its way to a fire
ran over the plaintiff; Fisher v. Bos-
ton, 104 Mass. 87, in which the plaint-
iff's injury was caused by the rupture
of a hose; Wild v. Paterson, 47 N. J.
Taw, 406, in which the injury re-
sulted from the defective brake of a
fire-engine; Hayes v. Oshkosh, 33
Wis. 314, in which the injury was
caused by the fireman negligently
allowing the sparks to escape from
the engine; Wilcox v. Chicago, 107
Ill. 337, in which the damage was the
result of a collision with a hook-and-
ladder wagon, the driver being neg-
ligent: Howard v. San Francisco, 51
Cal. 52, in which a collision with the
fire-engine was the cause of the in-
jury; McKenna v. St. Louis, 6 Mo.
App. 320, negligent management of
the hose carriage; Jewett v. New
IHaven, 38 Conn. 368, and Grube v.
St. Paul, 37 Minn. 402, exactly simi-
lar cases; Welch v. Rutland, 56 Vt.
228, in which the injury was caused
by ice made of water that was neg-
ligently allowed to run from a fire
hydrant; Dodge v. Granger, 17 R. I.
657, in which the injury was caused
by the negligent projection of a lad-
der from an engine house; Simon v.
Atlanta, 67 Ga. 618, in which the
damage was the result of a rope
stretched across the street by the fire
department. See also Patch v. Cov-
ington, 17 B. Mon. 722; Brinkmeyer
man v. Washington, 1 Black, 39, 49;
Eies v. City of Erie, 135 Pa. St. 144;
Heller v. Sedalia, 53 Mo. 149; Robin-
son v. Evansville, 87 Ind. 334.
“In providing a prison and keep-
ing it in repair, and furnishing sup-
plies for its inmates, a city or village
exercises discretionary governmental
functions, and is therefore not an-
swerable to one who is injured in
health or otherwise by the condition
of the prison or the failure to furnish
proper supplies to the persons Con-
fined therein. Le Clef v. Concordia,
41 Kan. 323; 13 Am. St. Rep. 285;
Moffit v. Asheville, 103 N. C. 237; 14
Am. St. Rep. 810; Governor v. Clark
Co., 19 Ga. 97; Ulrich v. City of St.
Louis, 34 Am. St. Rep. 372; 112 Mo.
138.” Elliott, Mun. Corp., § 315.
A municipal corporation is not
liable for damages for the death of a
person caused by the burning of its
jail while such person was confined
therein by the municipal authority
for a violation of its ordinances,
though such fire was caused directly
by the wrongful act or negligence of
the officers or agents of the munici-
pality. Brown v. Guyandotte, 3 W.
Va. 299; Howard v. Wooster, 153
Mass. 426; 25 Am. Rep. 651.
1 For illustration, in Toledo v. Cone,
41 Ohio St. 163, 164, the delivering
judge said: “It lay within the legis-
lative capacity, judgment and dis-
550 LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. [$461.
It is common nowadays to permit municipal ownership of
strictly private property to a certain extent, and as to this
property there is no distinction in reference to the rights and
liabilities of the city in reference thereto and that of private
individual property, excepting, of course, that an execution
could not be issued against the city and its property seized and
sold; but there is a class of municipal ownership of public prop-
erty and institutions in which the courts are not agreed as to
the classification; for instance, the city water-works, telephone
lines, hospitals, electric lighting plants, and the like.
The question of exemption from liability, or liability in such
cases, in a given state, depends upon the view taken of it by
the court as to whether the purpose is one of public and gen-
eral interest as distinguished from one of local quasi-private, or,
as it is expressed, corporate ownership." .
SEC. 461. Mode of Eacercising Municipal Power.—The gov-
erning body of a municipality must be organized, and is subject
to rules and regulations prescribed in the charter as to the man-
ner of exercising its legislative control over the municipality.”
It is a well-established rule of the common law, that, as to
powers intrusted to a public board or body, they may be exer-
cised by a majority, whereas in private enterprises the con-
trary holds: that, unless specially authorized, any delegate body
can only act as a whole, and there is no quorum.”
So, in the absence of direction in the incorporating act, a
majority of the city council may meet and proceed to enact
by-laws or ordinances, and in the passage of ordinances a ma-
jority of a quorum at a regularly appointed meeting may enact
a binding ordinance.
The mode of enacting Ordinances varies in the various states
and is guided and controlled by the provisions of the charter."
Cretion of the city to provide for the
burial of the dead, and to build req-
uisite vaults; but, having become
the owner of such property, the city
in managing it was held to the same
degree of care in preventing damage
to others as would be required of
natural persons.”
*See Thk v. Duluth, 58 Minn. 182;
Clºnte, secs. 439–460.
*See Elliott, Mun, Corp., ch. XIV.
*Livingston v. Lynch, 1 John. Ch.
573; Green v. Miller, 6 John. 39; El-
liott, Mun. Corp., p. 221; Lawrence v.
Ingersol, 88 Tenn. 52; 6 L. R. A. 308,
and note; Rushville Gas Co. v. Rush-
ville, 121 Ind. 206; 6 L. R. A. 315;
Launtz v. People, 113 Ill. 137; 55 Am.
Rep. 405. The record should affirm-
atively show the requisite majority.
Ewbanks v. Ashley, 36 Ill. 177.
*In Campbell v. Cincinnati, 49 Ohio
$463.] LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. 551
It is usually required that a journal be kept and the yeas and
nays shown in the passage of Ordinances, and that they shall
be published, either in a newspaper or by posting in some pub-
lic, conspicuous place."
SEC. 462. Territorial Eatent of Government.—In order to
render efficacious the control of the local police of a commu-
nity, it is frequently essential that they have the power to pro-
hibit certain occupations and conduct within a distance beyond
the actual boundaries; and as to all governmental matters
which the legislature itself has the right to control, it is quite
well settled that a municipality may be invested with power
to regulate police within reasonable distance beyond its bound-
aries.” So ordinances prohibiting the keeping of dram-shops,
bawdy-houses, gambling places, and other offenses against the
police, beyond the city limits, are common.”
In order to make efficient use of the powers of a city in ref-
erence to drainage, health, etc., it is equally well settled that
under the law of eminent domain a city may go beyond its
city limits to procure the source of its water supply,” or pass
beyond its limits to obtain an outlet for its sewerage, or build
works for the protection of the city.”
But it is not within the power of a city to construct a wholly
independent work beyond the city limits." The capacity of a
city to engage in purely private enterprises is not doubted. It
depends upon the provisions of the charter."
SEC. 463. Police Power.— Sufficient has been said in connec-
tion with the power of courts over local police to indicate the
nature of the police power.
St. 463, statutory provisions aimed at 8 Gunnarssohn v. Sterling, 92 Ill.
special legislation by the council and
at omnibus bills were strictly en-
forced.
1 Barr v. Village of Auburn, 89 Ill.
361; Ewbanks v. Ashley, 36 Ill. 177.
A city ordinance is a law, but it is
not like a general or public law.
Courts do not take judicial notice of
city ordinances. Dillon, Mun. Corp.,
sec. 346; Bowman v. St. John, 43 Ill.
337. They must be pleaded. An-
drews' Stephen's Pl. 262. .
2 Chicago Pkg. Co. v. Chicago, 88
Ill. 221.
569. But the local government of
people outside of the boundary Can-
not be taken away in this indirect
manner. Board v. Auditors, 68 Mich.
576.
4 Bailey v. New York, 3 Hill, 531–
the Croton water system; Walla.
Walla v. Water Co., 19 Sup. Ct. Rep.
77.
5 Shawneetown v. Baker, 85 Ill. 563.
6 Updike v. Wright, 81 Ill. 49.
7 Bailey v. New York, 3 Hill, 531;
Walla Walla v. Water Co, supra, and
cases cited; secs. 439–460, ante.
552 LOCAL SELF-Gov.ERNMENT—MUNICIPAL CORPORATIONS. [$463.
Local municipalities of America are commonly invested with
a large degree of power in reference to local police."
In considering these grants of power, a few principal rules
will generally serve as a guide to their solution.
While it is commonly said that grants are to be considered
most strongly against the grantor, this rule is not generally ap-
plicable to grants of power of this nature; but a power to license
and regulate would not be considered as a power to prohibit.
A general power to regulate all businesses within a commu-
nity gives the power to pass all reasonable ordinances in refer-
ence thereto; but it is always a question within the province of
the court to determine whether a village or city ordinance is
a reasonable regulation.” -
The conduct of business as well as the conduct of persons on
the Sabbath day may, under such a power and under the gen-
eral police power, be regulated, or certain classes of business
even prohibited; but there is no more specific rule than the one
just indicated, that such regulations must be reasonable, and
their reasonableness will depend upon the character, mental
qualifications and peculiar views, perhaps, of the personnel of
the supreme tribunal which is ultimately to pass on this ques-
tion.” : g -
It should be borne in mind that in the exercise of this police
power a city is merely the agent of the state, and so in refer-
ence to the usual accessories—police officers, city lock-ups and
prisons;* these are but instruments and agencies of the state —
the same immunities in reference to accidents, casualties and
negligence or wilfulness of the
1 Elliott, Mun. Corp., 83; Roberts
v. Ogle, 30 Ill. 459; Goddard v. Jack-
3Onville, 15 Ill. 588.
2 Elliott, Mun. Corp.; Howes v.
Chicago, 158 Ill. 653; 30 L. R. A. 225.
The legislature may give the city
power to do what it might itself do
in this regard. Commonwealth v.
T)avis, 140 Mass. 485.
3 Hart v. People, 89 Ill. 407; Seibold
v. People, 86 Ill. 33; Eden v. People,
161 Ill. 296. A state law prohibiting
the exercise of business of barbers on
Sunday held void because it discrim-
officers obtain.”
inated; but the case and its arguments
are valuable on the Sunday question.
4 Ante, sec. 460, and note.
5 The city may be given exclusive
or concurrent powers. Seibold v. Peo-
ple, 86 Ill. 33. But in no case, except
by statute, where the city is execut-
ing the police power, is it liable for a
failure to protect property or per-
sons from injury on account of the
acts of others. State v. Mayor, 109
TJ. S. 285. The famous New Orleans.
mob case is New Orleans v. Abbag-
nato, 62 Fed. Rep. 240; 26 L. R. A.
329. See Elliott, Mun. Corp. 278.
§ 465.] LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONs. 553
SEC. 464. Eacecutive Officers."—The execution of the laws of
a city are intrusted to the mayor and other executive or mu-
nicipal officers; generally a city attorney, city clerk, city
treasurer, Superintendent of streets or a street department, city
marshal or chief of police, with a police department, the num-
ber and subdivision of all these depending on the extent and
complexity of the city organization.
The mayor and city attorney are usually considered parts of
the city council—the mayor with a vote in case of tie, and a
limited veto; the city attorney with the privilege of speaking
in the council upon measures, but having no vote.
The mayor has usually the power to pardon.
SEC. 465. Control Over Streets, Alleys and Parks.-Streets
and alleys of a city are placed under their care and control, and
in some of the localities the fee of the street is held to be in
the city in trust for the public.”
It is within the power of the municipality to pass all reason-
able Ordinances regulating the use of streets and alleys; and
being so invested with complete control, it is generally held
that for defects in the street, after notice, or which exist for
such a reasonable time that notice should be presumed,” the city
is liable in its corporate capacity for private injury on that,
account. The same rule would extend to all its private prop-
erty.”
The public parks which belong to the city, and distinguished
1 Removal of Officers—Ordinarily, not be dismissed as guilty of another
when” appointing power is confided offense which is not specified. Wil-
to an officer or board, the power of kinson v. Board, 107 Mich. 394. See.
removal at will accompanies the Wellman v. Board, 84 Mich. 558.
power of appointment, when no fixed * Hibbard & Co. v. Chicago, 173 Ill.
term is provided by law, unless ex- 91. The streets are not merely for
cluded by express words or neces- travel, but may be put to reasonable
sary implication. See Throop on Po- use by abutting owners. Field v.
lice Officers, sec. 354, and cases cited; ' Barling, 149 Ill. 556. Children play-
Euller v. Attorney-General, 98 Mich. ing on them are making lawful use.
101; Attorney-General v. Jochim, 99 Quincy H. Ry. Co. v. Gnuse, 38 Ill.
Mich. 367. Where the charter of a App. 212.
city empowers the board of police 3 Aurora v. Dale, 90 Ill. 45.
Commissioners to appoint and sum- 4 It is liable for injury occasioned.
marily dismiss a policeman, where by the ruinous condition of a build-
Specific charges have been preferred ing owned by it. Chicago v. O’Bren-
against an officer upon which he is nan, 65 Ill. 16.
tried and found not guilty, he can-
554. LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. [$466.
from the parks which the city is compelled by general legis-
lation to maintain, are within the control of the city, even to
a greater extent than the streets; and an ordinance which
might be held by the court to be unreasonable as to the use of
a street—for example, the prohibiting of parades, or beating
of drums, or shouting, such as are sometimes indulged in by
religious enthusiasts — might be held reasonable in the case of
the parks of a city."
The city has undoubtedly the right to repair or change the
grades of the streets at will, and it is not every consequential
injury for which an individual may recover.”
In making these changes of grades, however, every reason-
able means must be availed of to prevent overflow or damage
to private property.” - .
SEC. 466. Grants of Franchises in Streets.-The ownership
of the streets is in the city in trust for the public, and this trust
cannot be frittered away or materially impaired. While the
1 An ordinance making it unlaw-
ful to beat a drum upon any traveled
street without special permit from
the president of the board of trustees
of a city, who is authorized to grant
such permits, is sustained in Re
Flaherty, 105 Cal. 538; 27 L. R. A. 529,
against the contention, on which
several of the judges based a dissent,
that an unconstitutional delegation
of power was thereby made to the
president of the board to exercise his
discretion in granting permits. An
ordinance is not unconstitutional bé-
cause it provides that no person shall,
in or upon any of the public grounds,
make any public address, etc., except
in accordance with a permit from
the mayor. Davis v. Massachusetts,
167 U. S. 43. The public common of
Boston is the property of the inhab-
itants. Id.; Lincoln v. Boston, 148
Mass. 578.
dition according to its best judgment;
and where it chooses to grade its
streets so as to leave only a two-inch
depth of gutter, instead of six, it may
do so without being subject to any
control of the courts.” McHale v.
Easton & B. Transit Co., 169 Pa. St.
416. See Davis W. Crawfordsville, 119
Ind. 1.
& A city has absolute control over
the grade of its streets, and may
change the grade at will. In such
cases the city is liable to the “same
extent that a natural person is for
direct, physical injury caused by Ob-
structing the flow of water, or col-
lecting it and casting upon it. Rye
v. City of Mankato, 36 Minn. 373. See
Nevins v. City of Peoria, 41 Ill. 502
2 Wabash Ry. v. Defiance, 167 U. S.
38. “A city has the complete con-
trol over the streets, pavements, etc.,
and determines, in the exercise of its
functions, everything in connection
with their grading, paving and con-
(this is one of the great leading cases);
Perry v. Worcester, 6 Gray, 544. And
where the constitution provides that
property shall not be taken or dam-
aged, any substantial consequential.
injury by reason of a change must be
compensated for. Elgin v. Eaton, 83
Ill. 535. If the improvement is made
without provision for ascertaining
the damage an action lies. Id.
$467.J LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. 555
city may license or suffer temporary or continual use of the
streets for mere private purposes not interfering with the public
use or the rights of adjoining owners, it cannot grant a fran-
chise of a permanent nature for any use except of a public
nature.” It may authorize their use by private persons for the
purpose of Supplying water, gas or electric light, or for purposes
of transportation.”
It has been held that such use is not an additional burden
Such as requires compensation to the adjacent owners either
by condemnation proceedings or otherwise.”
SEC. 467. Taxing Power.—The taxing power of the city, like
that of the state, must be for public purposes—maintenance of
schools, libraries, sewers, public watering-troughs, city lock-ups,”
city hall, and all the various essentials or conveniences reason-
ably necessary for the management of municipal affairs, and
may be provided for out of the general fund.
Upon precisely the same principle relating to the state, the
city may be empowered to impose special assessments for local
improvements, and special taxation of contiguous property.
The city may be compelled to tax for the purpose of main-
taining instruments and agencies of government which it would
be within the power of the state legislature to maintain, and
no very strict line is drawn to distinguish between the local
and special benefit, and the special benefit to the public."
1 Hoey v. Gilroy, 129 N. Y. 132.
2 PHibbard & Co. v. Chicago, 173
Ill. 91.
3 People v. Ft. Wayne & E. Ry. Co.,
92 Mich. 525.
4 Id. See Detroit Ry. Co. v. Mills,
85 Mich. 643, and citations. The plac-
ing of poles in the streets for the
purpose of stretching wires designed
for the purpose of conveying electric-
ity is not such a use of the highway
as private persons may make without
the license of the municipality, and ,
a city may exact compensation there-
for. St. Louis v. W. U. Tel. Co., 148
U. S. 92.
* While it has at various times in
legal experience been customary to
allow and sometimes to compel pris-
ons to be built and maintained by
larger or smaller municipal corpora-
tions, yet all criminal prisons are and
must be public and not private places
of detention, and no imprisonment
can be lawful that is not authorized
by public laws. In England it is
settled that all prisons, by whomso-
ever kept, are the king’s prisons (2
Inst. 100; Ex parte Evans, 8 T. R.
172), and no new prison can be erected
except by act of parliament. Detroit
v. Board, 108 Mich. 494; ante, sec. 460.
6 In Washington Home v. Chicago,
157 Ill. 414, the complainants sued
the city of Chicago to compel the
paying over of a portion of tax pro-
vided in the incorporating act that
it might receive from the city of
556 LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. [$467.
The taxing power of a city is of the same nature, extends to
the same objects, and has only the same limitations which the
same power has when exercised by the United States or a state,
but it is a derivative power and may be controlled by the leg-
islature.
By becoming a municipal corporation the inhabitants of a
city do not escape the liability to compulsory taxation under
which they rested before the charter was granted.
Attention has been called to the extremes to which this legis-
lative power to compel taxation has been carried."
Chicago. It was incorporated under
a special act of the legislature of 1867.
The object of the incorporation was
the maintenance, care, cure and rec-
lamation of inebriates. It was pro-
vided that any person sentenced by
the authorities of Chicago may, with
the consent of proper officers of said
Home, be received, detained and
treated by said hospital. The act also
required the city to pay over ten per
cent. Of all moneys received from
licenses for the sale of spirituous liq-
uors. For many years the city paid
the money and the corporation per-
formed the services. Finally the pay-
ment was stopped, and it was held
by the supreme court that this in-
stitution was not of a character suffi-
ciently public to authorize the legis-
lature to authorize the city to grant
this assistance.
The supplying of municipal corpo-
rations and their citizens with nat-
ural gas is a public use or purpose for
which taxes may be levied. State v.
Toledo, 48 Ohio St. 112; Toledo v.
HOsler, 54 Ohio St. 209. While the
erection of all such works is suffi-
ciently public to authorize the city
to maintain them, this does not deter-
mine their character as to whether
they are governmental or merely pri-
vate in their character. In Bailey v.
Mayor, 3 Hill, 531, it was held that
the Croton Water Works System was
purely private. The title of the act
under which this system was erected
was “An act to provide for supplying
the city of New York with pure and
wholesome water.” The double Ob-
ject of a water-works system may be
profitably observed— (a) to supply
pure and wholesome water; (b) to
supply water for extinguishment of
fires. All will agree that the preven-
tion and extinguishment of fires is a
part of the police and general gov-
ernmental duty; it is believed that
there is no conflict of opinion upon
this. Others maintain, as was main-
tained in the case just cited, that the
furnishing of pure and wholesome
water for domestic purposes is a
purely private function. This case
is of doubtful authority at the present
time. Springfield Ins. Co. v. Keese-
ville, 148 N. Y. 46. See, on these dis-
tinctions, City of Walla Walla v.
Walla Walla Water Co., 19 Sup. Ct.
Rep. 77; Helena Water Co. v. Steele,
20 Mont. 1; ante, sec. 459.
1 The relation of a municipality to
the state, in respect to the perform-
ance of a public duty imposed upon
it by the legislature, is presented in
Davock v. Moore, 105 Mich. 120; 28 L.
R. A. 783, which holds that the con-
sent of a municipality or its local offi-
cers or boards is not necessary to the
validity of a tax to raise money re-
quired by a board of health under leg-
islative authority. In a recent case in
Montana, the same question was ex-
$468.] LOCAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. 557
SEC. 468. Liability for Personal Torts.-Aside from questions
of municipal liability for the acts of officers done under color
of office or supposed execution of law, questions arise where
officers commit personal torts, either maliciously or recklessly;
and the question frequently arises whether the city is liable for
such torts. *
When such officers are engaged in executing what are clearly
the criminal laws of the state, it is quite plain on principle that
there can be no more liability against the city than there would
be against the state; but where these officers are engaged in
enforcing city or village ordinances regulating matters of in-
different nature, not contrary to the criminal law, and which
would be perfectly lawful unless prohibited, there is more
ground for saying that they are executing a mere city power,
and not the powers of the state.
But even in such cases it has been held that the city is not
liable for assault and battery, or the loss of personal property.”
It may, however, be well doubted whether this rule will
apply where the officer was strictly pursuing and carrying out
the direction of the city, either by resolution or ordinance. In
such a case there would seem to be no distinction between a
personal act of violence and false imprisonment and a direct
trespass against property, and that an action in such case will
lie either for personal tort or direct trespass against land.”
amined, and while the case involves Corp., ch. 16. “Where the act done
constitutional restrictions, the posi-
tion maintained by Judge Cooley
(and approved in some of the states,
which is contrary to the decision in
the United States court heretofore
cited, ante, sec. 459) is sustained.
Helena Water Co. v. Steele, 20 Mont. 1,
citing People v. Chicago, 51 Ill., 17.
1 College v. Cleveland, 12 Ohio St.
375; 30 Am. St. Rep. 373; Bowditch
v. Boston, 101 U. S. 16.
2 Butterick v. Lowell, 1 Allen, 172;
Elliott v. Philadelphia, 75 Pa. St. 342;
15 Am. Rep. 591.
3 Chicago v. McGraw, 75 Ill. 566;
Allen v. City of Decatur, 23 Ill. 332.
See Wolf v. Boettcher, 64 Ill. 316;
Thompson, Corp., sec. 6305; Elliott,
is within the corporate power, and
might have been lawfully accom-
plished had the municipal authori-
ties proceeded according to law, the
corporation will be liable for the acts
of its officers and servants, proceed-
ing contrary to law, or in an irreg-
ular manner. But where the act
complained of lies wholly outside of
the general or special powers of the
corporation, it can, in no event, be
liable, whether it directly com-
manded the performance of the act,
or whether it be done by its officers
without express command.” City of
Chicago v. Turner, 64 Ill. 419. See
Sacks v. Minneapolis, 77 N. W. Rep.
563, and citations.
558 LOCAL SELF-GovKRNMENT—MUNICIPAL CORPORATIONS. [$469.
SEC. 469. Corporate Power — Doctrine of Ultra Wires.—
When questions arise as to the nature of the power of a corpo-
ration to perform certain acts or to enter into certain contracts,
they are generally designated as questions ultra vires.
So we have works entitled “Ultra Wires; ” and because the
expression in this brief form is incapable of conveying very
definitely the whole meaning, the doctrine itself has been ren-
dered somewhat confused and uncertain."
Nowadays the expression is almost universally confined to
the subject of corporation contracts, although sometimes spoken
of in connection with corporate acts not contractual; but, as
we have seen heretofore, it is sometimes used in relation to the
powers of legislature or congress. It was originally used, it is
said, in Kames’ Principles of Equity, questioning the validity
of a deed.” - -
Porm of Presentation Important.— Treating it as a question
of corporation law, and equally applicable to public and pri-
vate corporations, the manner in which the question is viewed
will frequently affect the court’s decision.
An act done or contract entered into by a corporation may
be alleged to be ultra wires from several standpoints.
JFirst. The objection may come from the state, which seeks
to forfeit the charter or restrain the further exercise of the
alleged unwarranted power.” -
Second. A corporation may seek to deny its liability upon a
contract or for the action of its officers, expressly entered into
or expressly authorized, or it may deny the implication of au-
thority.”
Third. A third person, against whom an action is brought
by a corporation upon a contract regular in form, may deny
that the corporation had power to enter into such contract.”
JFourth. A member may object to the performance of a con-
tract or to the execution of a contract, or the performance of
1 See Elliott, Mun, Corp., § 288. Bunt, 127 Ill. 257; People v. Chicago
2 Anderson’s Dict., title “Ultra Gas. T. Co., 130 Ill. 268.
VireS.” - 4 California Bank v. Kennedy, 167
3 People v. N. R. S. R. Co., 121 N. Y. U. S. 362.
121; People v. P. P. C. Co., 175 Ill. 5 City of Fulton v. Northern Ill.
125; Chicago Mut. B. L. I. Ass’n v. College, 158 Ill. 333.
$470.] LocAL SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. 559
acts by the corporate body, which he claims to be ultra wires
its corporate powers."
The state is the only party that can question certain powers.”
SEC. 470. The Test of Power.—A corporation derives all its
powers from its charter, and can exercise only those expressly
granted therein, or implied as essential or proper to the carrying
out of the objects for which the corporation was created.”
A contract strictly ultra vires is void, not simply voidable.
As a contract, no rights or liabilities can flow from it; and such
a contract may be questioned by any one, at any time, and
under any circumstances.” -
In such cases, if parties have proceeded under the contract,
and one has received a benefit from the other merely by way
of services, there is no liability on the contract, because the
power to contract in any form is wanting; but if one party had
received money or property which might under ordinary cir-
cumstances be recovered, the money or property may be re-
covered under appropriate form of action."
The difficulty in such cases generally arises in reference to
implied powers, and questions
what are called incidental or
l Byrne v. Schuyler Elec. Mfg. Co.,
65 Conn. 336; Bastian v. Modern
Woodmen, 166 Ill. 595. These phases,
properly termed ultra vires, should
be distinguished from the features of
a corporate contract or act which
would be beyond the right of any
person to enter into, such as Con-
tracts in restraint of trade, or con-
tracts creating a monopoly, such as
trusts, combinations and consolida-
tions, which are prohibited on gen-
eral principles of the common law,
or by statutes applicable to all per-
sons, whether artificial or natural.
IBrenham v. Brenham Co., 67 Tex.
542.
2 Champaign v. Harmon, 98 Ill. 491;
Railway Co. v. Mills, 85 Mich. 643.
* See this subject more closely exam-
ined under “Private corporations,”
p. 572; Cook Co. v. McCrae, 93 Ill.
237; Crofut v. Danbury, 65 Conn. 294;
Wheeler v. County of Wayne, 132 Ill.
599–604; Huesing v. City of Rock
Island, 128 Ill. 465; People v. Chicago
Gas Trust Co., 130 Ill. 258; McPherson
v. Foster, 43 Iowa, 48; ante, Sec. 459.
4 Bissell v. Mich. Southern Ry. Co.,
22 N.Y. 258; Davis v. Old Colony Ry.
Co., 131 Mass. 248; 41 Am. Rep. 221.
5 Pittsburgh & St. L. R. R. Co. v.
Eeokuk B. CO., 131 U. S. 371; Cent.
Trans. Co. v. Pullman P. C. Co., 139
TJ. S. 24.
6 Salt Lake City v. Hollister, 118
TJ. S. 256 (see closing part of opinion);
Pittsburgh, C. & St. L. R. Co. v. Ham-
ilton Bridge Co., 132 U. S. 371; Cen-
tral Trans. Co. v. Pullman P. C. Co.,
supra; Smith v. Ala. L., Ins. & T. Co.,
4 Ala. 558; Dill v. Wareham, 7 Met.
(Mass.) 438; Morville v. American
Tract Society, 123 Mass. 129, 137; Ar-
genti v. City of San Francisco, 16 Cal.
256; Miller v. Am. Mut. Ass. Ins. Co.,
92 Tenn. 167; Phila. Loan Co. v.
Towner, 13 Conn. 249; Sacks v. Min-
neapolis, 77 N. W. Rep. 563.
560 LooAL SELF-govERNMENT—MUNICIPAL CORPORATIONS. [$470.
may arise not only as to the act which may be done, but the
manner of performance."
If the act is one which is performed in an irregular manner,
or inappropriate means have been taken to accomplish it, cir-
cumstances may arise which will estop the party questioning
the power from contesting it, or even contesting the manner of
its execution; and in many such cases where the municipality
might perform the act, an implied obligation may be created
On the ground of equity and fairness, or the defendant held es-
topped from making the defense in the particular instance.”
The doctrine of ultra vires is established for the benefit of
the public and on grounds of general expediency, and cannot
be used to defeat that end.”
So a defendant, while retaining the fruits of a transaction,
will not be heard to allege an excessive exercise of a power
possessed in some degree.*
In all such cases the contract, so far as executed, is enforce-
able, although its provisions are beyond and broader than those
authorized by the enabling act.”
Contracts are in such cases enforced, not on the ground of
power, but on the ground of conscience. -
It is impossible to lay down any general rules which will be
safe guides in specific instances. It is sometimes said that the
courts are inclined to maintain with vigor the limitations of
corporate action whenever it is a question of restraining the
corporation in advance from passing beyond the boundaries of
their charters. They are equally inclined, on the other hand,
to enforce against them contracts, though ultra vires, of which
they have received the benefit." .
1 City cannot loan without express
authority. Fulton City v. Northern
Ill. College, 158 Ill. 333. On the power
to borrow, see Mayor v. Ray, 19 Wall.
469; Daniels v. Tearney, 102 U. S. 415.
2 Sturgeon v. Board of Com., 65 Ind.
302. An estoppel proceeds upon the
theory of denying the right to insist
upon what is truth in fact, or the
true construction of an act.
8 Bank v. Matthews, 98 U. S. 642.
4 Wright v. People, 101 Pa. St. 204;
Whitney Arms Co. v. Barlow, 63 N.
Y. 62; Himes Brewing Co. v. Flan-
nery, 137 Ill. 318; East St. Louis v.
Gas Co., 98 Ill. 415.
*In the following cases mortgages
were enforced which were beyond the
power of the corporation to make:
Darst v. Gale, 83 Ill. 337; Ammerman
v. Niles, 9 C. E. Green, 13. Foreclos-
ures were allowed upon such mort-
gages in the following instances:
Walters v. Texas B. & L. Ass'n, 8 Tex.
Civ. App. 500; Bond v. Terrell Mfg.
Co., 82 Tex. 310; Bank v. Matthews,
98 U. S. 621.
6 Bradley v. Ballard, 55 Ill, 413.
$471.] Local SELF-GOVERNMENT—MUNICIPAL CORPORATIONS. 561
Morawetz, in his work on Corporations, says that, if specific
performance of a contract amounts only to compelling the pay-
ment of money under a contract, it may be granted, although
the contract might be ultra vires."
SEC. 471. Municipal Bonds — Estoppel in.— A vast amount
of litigation has arisen over the validity of municipal bonds
issued in aid of private enterprises of a quasi-public nature, and
in a great many cases it naturally happens that there is irregu-
larity, either in the issue of the bonds or want of power to issue
them in the particular instance. *
It being settled by law that a city may under some circum-
stances execute a particular contract (the one involved in the
litigation), whether a bond or otherwise, or accept a contract
in the nature of a security, it naturally follows that, in the
hands of an innocent third person, there should be a presump-
tion of the validity of an instrument of that nature.”
While the original holder of such an instrument, received
from a municipal corporation, should be prepared to defend the
power and legality of the instrument if assailed, it has become
the practice to insert in municipal bonds a recital of the pur-
pose for which the bond was given, and also a brief recital of
the basis of the issue.
If this recital indicates due and proper compliance with the
law, it ought to, and does, bind the municipality, and estop it
from questioning the facts expressed and implied in the recital,
for the doctrine of estoppel applies to an artificial person as
Well as to a natural one.”
1 Sec. 684.
*The execution of a mortgage
under Seal, regular on its face, is
prima facie evidence of its regular-
ity. Wood v. Whelen, 93 Ill. 153;
Railway Co. v. McCarthy, 96 U. S.
267; Miners’ Ditch Co. v. Zellerbach,
37 Cal. 543; 99 Am. Dec. 30. That a
municipal corporation may be a cred-
36
itor and take securities for repay-
ment is settled. See 2 Dill, Mun. Corp.
677; Sturgeon v. Board of Com., 65
Ind. 302; Pacific Exp. Co. v. Pea-
body, 25 Ill. App. 74.
8The law on this subject is fully
settled. The subject is quite fully
treated by Mr. Elliott. Mun. Corp.
164. *
CELAPTER XXVI.
PRIVATE CORPORATIONS.
SEC. 472. Forms of Individual Association.—The practice
of association between private individuals for the accomplish-
ment of some desired object of charity or business is very an-
cient.
The forms of association which individual interest and enter-
prise have contrived are numerous, both in character and in
their object."
Among the associations which the law recognizes, and which
exist in sufficient number to have been the occasion for dis-
tinctive systems of rules, are partnerships, joint-stock associ-
ations and corporations.
Mining partnerships” and syndi-
1 The student of the subject of pri-
vate corporations should read as his
first case the great decision of Chan-
cellor Kent in Livingston v. Lynch,
4 Johns. Ch. 573; 1 N. Y. Ch. Rep.
(Lawy. Co-op. ed.), p. 941. The case
was not a ſcorporation case, but it is
one of the most widely-cited cases,
and its principles apply to Corpora-
tions. Following this should be read
Thomas v. Dakin, 22 Wend. 9. In
this case Justice Nelson says: “We
may in short conclude by saying,
with the most approved authorities
at this day, that the essence of a cor-
poration consists in a capacity: 1. To
have perpetual succession under a
special name and in an artificial
form. 2. To take and grant proper-
ties, contract obligations, sue and be
sued by its corporate name as an in-
dividual; and 3. To receive and enjoy,
in Common, grants of privileges and
immunities.” This description of Jus-
tice Nelson has been approved and
acted upon in Snell v. Chicago, 133
Ill. 430, Mr. Justice Magruder saying:
“The first two franchises enumerated
by Judge Nelson are those which be-
long to the corporators and create
them, a corporation; the third is a
franchise which belongs to the cor-
poration as such.” See Warner v.
Beers, 23 Wend. 103; Memphis Ry.
Co. v. Commissioners, 112 U. S. 609.
2 Mining Partnerships.-Mr. Justice
Wood, quoting Mr. Justice Field in
Rahn v. Smelting Co., 102 U. S.
641, says: “‘Mining partnerships, as
distinct associations, with different
rights and liabilities attaching to
their members from those attaching
to members of ordinary trading part-
nerships, exist in all mining com-
munities; indeed, without them suc-
cessful mining would be attended
with difficulties and embarrassments
much greater than at present.’ He
then quotes a passage from the opin-
ion in Skillman v. Lockman, 23 Cal.
199, 203, to the effect that a mining
partnership is governed by many
of the rules relating to ordinary
partnerships, but also by Some rules
§ 472.] PRIVATE CORPORATIONS. 563
cates' are varying forms of these associations, partaking of the
nature of partnership, but having some peculiar features.
Clubs, though not incorporated, are recognized as possessing
a sort of entity, Or, as one might say, a quasi-personality.”
Joint-stock Associations.—Unless some artificial identity is
given to a numerous body, all must be recognized in contracts
or legal proceedings. |
“The inconvenience of this rule, as applied to large unincor-
porated joint-stock companies, has long been seriously felt. It
has been avoided in England by the institution of a public offi-
cer to sue and be sued on behalf of the members of the asso-
ciation. In this case, care is taken to render the public officer
the representative of the company, as distinct from the indi-
viduals composing it. Where this is done, legal proceedings
between the public officer and those individuals, or any of them,
peculiar to itself, one of which is.
that one person may convey his
interest in the mine and business
without dissolving the partnership,
and then proceeds as follows: “The
same doctrine is asserted in numer-
ous other cases, not only in that
court, but in the courts of England.
Associations for working mines are
generally composed of a greater num-
ber of persons than ordinary trading
partnerships; and it was early Seen
that the continuous working of a
mine, which is essential to its suc-
cessful development, would be im-
possible, or at least attended with
great difficulties, if an association
was to be dissolved by the death or
bankruptcy of one of its members,
or the assignment of his interest. A
different rule from that which gov-
erns the relations of members of a
trading partnership to each other
was therefore recognized as applica-
ble to the relations to each other of
members of a mining association.
The delectus personae which is essen-
tial to constitute an ordinary part-
nership has no place in these mining
associations. Duryea v. Burt, 28 Cal.
569; Settembre v. Putnam, 30 id. 490;
Taylor v. Castle, 42 id. 367.’” Bissell
v. FOSS, 114 U. S. 252.
1 Symdicates.—A form of associa-
tion, generally for the purpose of pur-
chasing, holding and selling, is called
a syndicate. The property is vested
in a trustee, with full powers of sale
and division of the proceeds; the ar-
rangement between the shareholders
and trustee never contemplates that
the shareholders should be entitled .
to an interest in the land, but only
in the proceeds of the sale. It fol-
lows that no shareholder can claim.
partition, or upon his death claim
that the property passes to his estate
So that his widow is endowed. The
Imembers are, to a certain extent,
partners, but not to such an extent
as makes them agents, nor that their
death absolves the syndicate. Their
interest is a mere personal chattel,
the assignment of which does not
change the status of the association.
Mallory v. Russell, 71 Iowa, 63; Spar-
ling v. Parker, 9 Beav. 450; Ward v.
Davis, 3 Sandf. 502.
2 Mechem, Agency, § 557; People
v. Adelphi Club, 149 N. Y. 5. Cf.
State v. Gilpi, 48 La. Ann. 520.
564 PRIVATE CORPORATIONS. [$473.
are theoretically as unobjectionable as are legal proceedings
between incorporated companies and their shareholders." Such
an officer must be created by law, since the partners or asso-
ciates cannot, by their own act, empower their treasurer or
secretary, for the time being, to represent the firm, and sue and
be sued on its behalf. Such a person would not be a representa-
tive, like a corporation sole, and could not have standing as
such in court.” On the other hand, if a representative of the
firm be established by law instead of by acts of the partners,
the cases already cited show that he may sue and be sued by
one of the associates, though the associates themselves are not
incorporated.” -
SEC. 473. The Policy of the Law.—The policy of the law in
permitting an artificial capacity to be assumed by private indi-
viduals was originally the accomplishment of some object or
the encouragement of some enterprise which would redound to
the general good of the community, and on that account a
special privilege or liberty, technically called a “franchise,”
was bestowed.
Tendencies of Corporations.—Experience has shown that this
expedient, which at first was resorted to to accomplish the pub-
lic good, has gone aside from the Original design.
Very early in the history of our country the baneful tend-
ency of the private corporation was recognized. For exam-
ple, Mr. Justice Wilson, speaking in 1790, says: “It must be
admitted, however, that, in too many instances, those bodies.
politic have, in their progress, counteracted the design of their
original formation. Monopoly, superstition and ignorance have
been the unnatural Offspring of literary, religious and commer-
cial corporations. This is not mentioned with a view to insin-
1 Lindley on Partnership, 720. See
Lawrence v. Wynn, 5 M. & W. 355;
Skinner v. Lambert, 4 Man. & Gr.
477; Wills v. Sutherland, 4 Exch. 211;
Smith v. Goldsworthy, 4 Adol. &
Ellis (N. S.), 430; Reddish v. Pinnock,
10 Exch. 213; Chapman v. Milvain, 5
id. 61; Ex parte Hall, 3 Deac. 405;
Harrison v. Brown, 5 De Gex & Sm.
728.
* Hybart v. Parker, 4 C. B. (N. S.)
3 Wescott v. Fargo, 61 N. Y. 538–
548. See cases distinguishing these
joint-stock associations, which lie so
very close in their attributes to cor-
porations. People v. Coleman, 133
N. Y. 279; Waterbury v. Mer. U. Exp.
Co., 50 Barb. 157; Com. v. U. S. Exp.
Co., 157 Pa. St. 579; Oliver v. L. & L.
Ins. Co., 100 Mass. 531; Liverpool Ins.
Co. v. Massachusetts, 10 Wall, 566;
Livingston v. Lynch, 4 John, Ch. 573.
209.
§ 474.] PRIVATE CORPORATIONS. 565
uate that such establishments ought to be prevented or de-
stroyed. I mean only to intimate that they should be erected
with caution and inspected with care.”"
SEC. 474. Modern Idea of the Franchise.— It may readily be
seen how at one time such a franchise was a special privilege
or peculiar liberty, but at present, when incorporation is the
rule and not the exception, and when incorporation upon the
same terms is the right of all who choose to avail themselves
of it equally with every other person, the franchise to be a cor-
poration can scarcely be deemed a special privilege.”
It is obvious, therefore, that too much importance must not
be attached to the ancient technical meanings of the word
“franchise.” 8
12 Wilson's Works, 265. “The
great increase of corporations for
almost every purpose is seriously
alarming. A spirit is growing which
will be productive of the most mis-
chievous effects. Interested and cor-
rupt motives are growing daily more
prevalent from this source. The in-
dependence and integrity of every
branch of our government are at-
tempted, and it is full time that a
check be put to this spirit, and to an
independent and enlightened judi-
Ciary can we alone look for its appli-
cation.” Ellis v. Marshall, 2 Mass.
272 (1807). -
1“Corporations derive their exist-
ence from the society, are the off-
Spring of transitory conditions of the
state; and with faculties for good in
such conditions, combine durable dis-
positions for evil. They display a
love of power, a preference for cor-
porate interests to moral or political
principles or public duties, and an
antagonism to individual freedom,
which have marked them as objects
of jealousy in every epoch of their
history. Therefore, the power has
been exercised, in all civilized states,
to limit their privileges, or to sup-
press their existence, under the exi-
gencies either of public policy or
political necessity.” Justice Camp-
bell, in Dodge v. Woolsey, 18 How.
331–375 (1855).
“The processes of combination, says
Justice Brown, have not only put prac-
tically the entire manufacturing in-
dustry of the country into the hands
of corporations, but have enabled the
latter to put an end to competition
among themselves by the creation of
trusts. On the other hand, labor is
gradually consolidating, with the
avowed purpose of dictating the
terms upon which the productive and
transportation industry of the coun-
try shall be carried on. The recon-
ciliation of this strife between cap-
ital and labor, if possible, is the great
Social problem of the coming cen-
tury.” Address of Justice Brown,
“Forum,” August, 1895; quoted in 2
Wilson's Works, 282, note.
2 Howev. Flagg, 72 Ill. 397.
3 * What is a franchise 2 Under
the English law, Blackstone defines
it as a “royal privilege, or branch of
the king’s prerogative, subsisting in
the hands of a subject.’ (2 Blk. Com.
37.) Generalized and divested of the
special form which it assumes under
a monarchical government based on
feudal traditions, a franchise is a
right, privilege or power of public
concern, which Ought not to be ex-
ercised by private individuals at
566 PRIVATE CORPORATIONS. [$$475, 476.
SEC. 475. Motives for the Varying Forms of Association.—
The usual object of incorporating for the purpose of accom-
plishing the desired object is to permit the investment of so
much of one's capital as seems desirable, without the risk of
more. Perhaps this is the most usual motive; but this immu-
nity from individual liability is not an essential feature of a
corporation."
In fact, in some states individuals are liable to creditors in
proportion to their stock holdings, notably in California.
The motive for forming a joint association is to change the
manner of holding; for the members of a partnership are joint
tenants of the property, and members of an association are ten-
ants in common.”
On the other hand, stockholders are not in any sense owners
of the corporate property, nor do they even have an equitable
interest therein.
Still a, further motive to choose incorporation or syndicate,
rather than a partnership, is that the members are not agents
of either the corporation or the other members, while partners
are the agents of the firm.” º -
SEC. 476. Scope of the Treatment.—With the history or pol-
icy of creating and maintaining corporations it is not the pur-
pose to extend the scope of this treatise." Neither is it intended
to attempt an extended treatment; but this inquiry will be
their mere will and pleasure, but
should be reserved for public con-
trol and administration, either by
the government directly or by public
agents, acting under such conditions
and regulations as the government
may impose in the public interest
and for the public security. Under
Our system, their existence and dis-
posal are under the control of the
legislative department of the govern-
ment, and they cannot be assumed or
exercised without legislative author-
ity. No private person can establish
a public highway, or a public ferry,
or railroad, or charge tolls for the use
of the same, without authority from
the legislature, direct or derived.
These are franchises. No private per-
son can take another's property, even
for a public use, without such author-
ity; which is the same as to say that
the right of eminent domain can only
be exercised by virtue of a legislative
grant. This is a franchise. No per-
Sons can make themselves a body cor-
porate and politic without legislative
authority. Corporate capacity is a
franchise. The list might be contin-
ued indefinitely.” California v. Pa-
cific R. R. Co., 127 U. S. 1–40.
1 Liverpool Ins. Co. v. Massachu-
setts, 10 Wall. 566.
*Livingston v. Lynch, 4 John. Ch.
573.
8 See Van Aerns v. Bleiston, 102
N. Y. 360.
4 Paul v. Virginia, 8 Wall. 168. See
argument of Pinckney in McCulloch
v. Maryland, 4 Wheat. 384.
§ 477.] IPRIVATE CORFORATIONS. 567
strictly confined to an outline of the principal features of
modern private corporations in such a manner as to afford a
practical understanding of their creation, management and
dissolution. It will be useful to distinguish them from other
associations having similar attributes, and to distinguish the
different classes of private corporations.
SEC. 477. Classes of Corporations Aggregate.—The objects
for which corporations are formed are as varying as the differ-
ent forms of business enterprises. The objects of incorpora-
tion, however, serve as a basis for the classification of private
corporations aggregate.
Formerly they were classed as lay and ecclesiastical. We
more appropriately say, corporations for religious purposes and
corporations for secular or civil objects.
These corporations for religious purposes, however, in our
view are not a genus, but a species, and together with all other
classes of corporations not for profit, whether they be for mutual
indemnity, mutual charity, free alms, or free nurture, fall within
the designation eleemosynary. All others may be said to be civil
or secular. *
Eleemosynary corporations may be again classified as relig-
ious, and lay or charitable. Civil or secular corporations are all
private in their foundation and ownership. There is a difference
in the objects intended to be accomplished, in the nature of
their franchises, which constitutes a reason for a well-recog-
nized classification.
The only franchise possessed by a commercial or manufact-
uring corporation is the franchise to be a corporation, but the
nature of its business is such as may be performed by any in-
dividual.
On the other hand, the quasi-public corporation is one con-
stituted of private persons, but the object of their association is
to engage in a business public in its nature." Here the business
is one which no private individual may engage in without a
special franchise, or a business so public in its nature that the
state may control its exercise. In these cases the business itself
is a franchise.
1 1 Cooley's Blk. (3d ed.) 471; Acad- Ill. 339; Proprietors v. Newcomb, 7
emy v. Harvard College, 12 Gray, 594; Met. 276; 37 Am. Dec. 757; Thomp-
Board of Education v. Bakewell, 122 son v. People, 22 Wend. 579.
568 PRIVATE CORPORATIONs.
[$478.
SEC. 478. Distinctive Features.—A partnership is nothing
more or less than a voluntary contractual association for the
accomplishment of some object' or business. Up to a certain
stage in the process of formation the creation of a corporation
aggregate is identical.” *
While a partnership may to a certain extent acquire an in-
dividuality or personality, it can never do so to the extent of
concealing the identity of the partners, or relieving them from
ultimate personal liability.” There is no further tie between
partners than a contractual one.
A corporation arises by a union of the consent and the sanc-
tion of the state creating a new person.
The agreement to become incorporated, the object of incor-
poration, name, location, and in fact all the principal features
of a corporation, must be agreed upon by the parties, and this
agreement is known in law as the articles of association, and,
upon incorporation, to a certain extent become a part and par-
cel of the charter. .
In determining whether an association of individuals having
characteristics similar to corporations is in fact a corporation,
the legislative designation in the statute that they are a body-
politic, or are not to be so considered, is not decisive.
Judge Gresham well said: “It is of no consequence that, in
the statute under which these companies are organized, they
are called unincorporated associations. In determining what
such institutions really are, regard is to be had to their essen-
tial attributes rather than to any mere name by which they
may be known. If the essential franchises of a corporation
are conferred upon a joint-stock company, it is none the less a
corporation for being called something else.”*
1 It is accordingly treated as a part
of the subject of contracts. Living-
ston v. Lynch, 4 Johns. Ch. 571–592.
2 Mining and land syndicates.
3 Clark v. Laird, St. L. Ct. App.,
Jan., 1895.
4 Fargo v. L., N. A. & C. Ry. Co., 6
Fed. Rep. 787.
Corporations Distinguished from
Joint-stock Associations.—“Taking
judicial notice, as this court is bound
to do, of the laws of the state of New
UITéI’.
this purpose the officer is regarded
York, I find that joint-stock associa-
tions are recognized by statute, and
endowed with the following attri-
butes of corporations:
“1st. They may sue and be sued in
the name of their president or treas-
3 R. S. (Ed. 1875), p. 762. For
as a corporation sole; he is a repre-
sentative of the company, distin-
guished from the individuals com-
posing it, and a suit may be brought
§ 478.]
569,
PRIVATE CORPORATIONS.
To a certain extent this perpetual succession may exist in
joint-stock associations, such as syndicates.
So the exemption
of individual liability in a corporate body does not change it.
from a corporation into a private association."
The essential features are the possession of complete person-
ality, with the capacity of perpetual succession, which is one
of the attributes which must exist to be a corporation (although
it may be possessed by an association not a corporation); a
power to take, hold and grant property in its own right, not.
merely as trustee, for syndicates take and hold property by or
through a trustee, leaving but
an equitable interest, and not.
against him by other shareholders in
the company. Westcott v. Fargo, 61
N. Y. 542; Cross v. Jackson, 5 Hill,
478. No such suit abates by reason
of the death, removal or resignation
of the officer so sued, but may be
Continued against his successor. 3
R. S., p. 763. The officer so sued is
not personally liable. Id.
“2d. Its capital is represented by
certificates of stock. Id., p. 764.
“3d. Neither the death of a stock-
holder nor the assignment of his
stock works a dissolution of the com-
pany. In other words, they are en-
dowed with perpetual succession, or,
as it is termed, the immortality of
Corporations. Id. -
“4th. They may take, hold and
convey real estate in the name of
their president, and in perpetual suc-
cession. 2 R. S., p. 402; Waterbury
v. Mer. U. Exp. Co., 50 Barb. 160.
“Partnerships have none of these
attributes. Indeed, except in the
want of a common seal, these asso-
ciations are corporations without the
name. The definition of a corpora-
tion is quite broad enough to include
associations of this character. In the
work of Angell & Ames, it is defined
as a “body, created by law, composed
of individuals united under a com-
mon name, the members of which
succeed each other, so that the body
Continues the same, notwithstanding
the change of individuals who com-
pose it, and is for certain purposes.
considered as a natural person.’
“Though the acts of New York.
above cited provide that joint-stock.
Companies shall not have the rights.
and privileges of corporations, they
are expressly endowed with inherent
qualities as such; and the constitu-
tion of the state (art. 8, sec. 3) pro-
vides that the term ‘corporations,’ as
used in this article, shall ‘be con-
strued to include all associations and
joint-stock companies having any of
the powers or privileges of corpora-
tions not possessed by individuals or
partnerships. And all corporations
shall have a right to sue, and shall
be subject to be sued, in all courts in
like cases as natural persons.” It is
true that stockholders are liable in-
dividually for the debts of the asso-
ciation. But this liability attaches
Only after an exhaustion of remedies.
against the joint property. 3 R. S.,.
p. 763. As observed by the supreme
court, this individual liability is by
no means incompatible with the cor-
porate idea. Liverpool Ins. Co. v.
Massachusetts, 10 Wall. (77 U. S.) 566.
Indeed, such liability is frequently
imposed in favor of creditors of banks.
and claims for personal labor.” Maltz.
v. Am. Exp. Co., 1 Flippin, 16; Fed.
CaS. 566. -
! Liverpool Ins. Co. v. Massachu-
setts, 10 Wall. 566.
370 PRIVATE corporations. [šš 479, 480.
an estate in the members. This artificial form naturally con-
fers the power to sue and contract obligations, and to be sued
in the corporate name.
So, after all, the idea of personality, artificial individuality,
One may say, is the peculiar distinguishing feature of a mod-
ern corporation."
SEC. 479. The Articles of Association.—The first step in the
formation of a corporation is the agreement to associate to-
gether as such, and this is usually accomplished by means of a
written contract called the “articles of association.”
These articles of association will generally, and should, fol-
low in their provisions the requirements of the law, stating the
name by which the corporation is to be known, the location of
its principal office,” the objects which are intended to be ac-
complished by the incorporation — that is, the business to be
followed, if it is a business corporation,-the plan which is to
be followed in accomplishing it, and the officers which are in-
tended to manage the business.
This agreement does not differ in any essential particular
from what the agreement would be if the parties were not in-
tending to incorporate.
SEC. 480. Promoters and Their Contracts.-In practical op-
eration, the design to form a corporation is frequently made by
persons who are unable to consummate their intent for want
of capital or some other essential requirement, and between
the time of forming this agreement and the time of receiving
a charter there are employed persons to assist in obtaining the
necessary subscriptions to the stock of the corporation, or the
necessary number of members required by law, and these agents
and assistants are known as promoters. -
The acts, representations and contracts of promoters are,
from the necessities of the case, frequently recognized and en-
1 So. Pac. Ry. Co. v. Orton, 6 Sawy. creating it. 1 Thomp. Corp., § 55;
157. Judge Dillon approves Savig- Lincoln Co. v. Prince, 2 Mass. 544;
ney’s designation of them as juridi- Taunton Co, v. Whiting, 9 Mass. 321;
‘cal persons. 1 Mun. Corp., § 3. Bastian v. Modern Woodmen, 166
*If no location is fixed, it neverthe- Ill. 595. A corporation is a resident
less follows that the meeting of the only of the state creating it. Wil-
corporation for strictly corporate pur- cox & G. Co. v. Phoenix Co., 60 Fed.
poses, as distinguished from business Rep. 932; Shattux v. Insurance Co.,
purposes, must be within the state 58 Fed. Rep. 609.
§§ 481,482.] PRIVATE corporations. 571
forced against the corporation, which comes into being because
of their efforts, and which has availed itself of the benefit of
their labors; or whether there happens to be a benefit or not,
whenever the corporation has expressly or impliedly adopted
or ratified the acts of the promoter."
SEC. 481. The Charter.—In most, if not all, of the states, at
the present time, there are general incorporating acts, provid-
ing for the incorporation of the different classes of private cor-
porations, such as banking corporations, railroad corporations,
religious corporations, charitable institutions, corporations for
profit, or money corporations with or without stock; and it is
generally required that an application be made for incorpora-
tion, accompanied by articles of association, containing provis-
ions covering the subject heretofore mentioned, stating the
location, object of the corporation, the plan, and designating a
temporary board of management; and, upon this being filed
and approved, the secretary of state issues a certificate of in-
Corporation. - - -
The Elements of the Charter, then, are the articles of associa-
tion, the statutory provisions of the law and the sanction of the
state. The charter is the constitution of the society, the funda-
mental law of its existence.” -
SEC. 482. The Object of General Incorporating Acts is to
have every corporation of the same class organized under sub-
stantially the same terms. In this manner is secured uniform-
ity and equality of corporate powers, functions and privileges.
It is apparent from an examination of the statutes that the
creation of corporations under general laws, rather than by
special legislative enactment, was not intended to work any
essential change in their nature or character. Whether deriv-
ing existence from a special law or from incorporation under
the general law, the corporation is an artificial being of legis-
lative creation, having no other powers or properties than such
as the law confers or which may be incidental to their very
existence. The statutes have carefully prescribed the mode of
incorporation. The persons proposing to be incorporated must
1 See a valuable article by the late per, 73 Ala. 325; 10 Am. Corp. Cas.
Austin Abbott, 1 Am. & Eng. Corp. 27; People v. Chicago Gas L. Co., 130
Cases, p. 1. - Ill. 267; Ohio Ry. & Nav. Co. v. Ohio
2 Granger L. & H. Ins. Co. v. Ram- Ry. Co., 130 U. S. 1.
572 - PRIVATE CORPORATIONS. [$$483, 484.
file, and cause to be recorded in a designated public office, a
declaration in writing, stating the name of the corporation, the
objects for which it is formed, the amount of capital stock,
the number of shares into which it is divided, the names of
the stockholders, and the number of shares each may hold.
The office and effect of the declaration the statutes do not
leave in doubt; when recorded, the persons signing it and their
successors become a body corporate by the name stated therein,
and with the powers conferred by law. - -
It is an acceptance by the corporators, under the name des-
ignated, for the objects ea pressed, of the corporate powers and
capacity the law confers, and a statement of the principal con-
stituents of the corporation."
SEC. 483. The Charter is the Measure of Power; it is the
Constitution.— The charter granted by the legislature is the
constitution of the corporation. The powers, duties and func-
tions of the corporation are all to be measured by the charter.
Not only the power to perform, but the manner in which the
objects of the corporation are to be accomplished, are to be deter-
mined by the charter.”
It follows from this that a definite notion of what is the
charter is essential to a right determination of what the corpo-
ration may or may not do, and in what manner these things
may be accomplished. - -
The charter is a grant from the sovereign power of the state,
and by the consent of the state only can it be varied or en-
larged. So a declaration in the articles of association that the
object of the corporation is of a character different from the
objects permitted under the act of incorporation is simply sur-
plusage and void.” *
A method of management contrary to the statute is not per-
missible. Whatever is beyond, or contrary to, the general act
of incorporation upon the acceptance of a charter becomes void."
SEC. 484. The Articles of Association are Merged in the
Charter.—Wherever the incorporation is by a special act in-
corporating the company according to the articles of associa-
1 Cases cited to sec. 481. 8 See next section.
2 Byrne v. Schuyler Elec. Mfg. Co., 4 Chicago Mut. Ben. Ass’n v. Hunt,
65 Conn. 336; Granger L. & H. Ins. 127 Ill. 257.
Co. v. Ramper, 73 Ala. 325; 10 Am. -
Corp. Cas. 27.
§ 485.] PRIVATE CORPORATIONS. 573
tion, these, as a matter of course, contain the substance of the
charter; but wherever, as is now universally the case, corpora-
tions are formed under general acts, the articles of association
become merged in the corporation. - º
These articles of association can add nothing to the provis-
ions of the statute; nor is it within the province of any minis-
terial officer, like the secretary of state, to add anything to the
general incorporating act by giving sanction to the incorpora-
tion of associations having provisions in the articles of associa-
tion foreign, or greater, or contrary to, the provisions of that
portion of the act under which the particular corporation is
Organized. That would be allowing the corporators to take
unto themselves special privileges and provisions." -
SEC. 485. Control of Corporations.— The corporation itself
belongs to the members, and the membership has the right
to control it. The manner in which this control is to be exer-
cised is fixed in the articles of association and in the charter;
and it is implied, in the absence of express provision, that, as to
all matters of policy and changes provided for in the charter, a
majority rules.”
This is said to be one of the principal aims of incorporation;
but, unless provided for in the charter, no fundamental change,
like a change in the charter by changing the articles of associa-
tion, can be made except by the unanimous consent of the mem-
bers.” . - -
The corporation can move in the orbit marked out by the
charter, and accomplish all of its purposes and aims, and per-
form all its business, and in all such matters a majority rules;
but a new course, new objects and new methods cannot be
adopted by a simple majority.” -
Another limitation upon the power to change is the consent
Of the state. An organic change is not within the implied pow-
ers, for the same reason that the incorporators cannot, by the
1 This was the precise point de- 3 Zabriskie v. Hackensack Ry. Co.,
cided in People v. Chicago Gas L. 18 N. J. Eq. 178; Byrne v. Schuyler El.
Co., 130 Ill. 268; Granger L. & H. Ins. Mfg. Co., 65 Conn. 336; Allerton v.
Co. v. Ramper, 73 Ala. 325; 10 Am. Chicago City Ry. Co., 18 Wall. 233;
Corp. Cas, 27. º March v. Railway Co., 43 N. H. 515.
* Snell v. Chicago, 133 Ill. 430; Liv- 41d. -
ingston v. Lynch, 4 John. Ch. 573;
Rumford v. Wood, 13 Mass. 195.
--~~
574 PRIVATE CORPORATIONS. [$$486, 487.
articles of association, accomplish a different purpose, or accom-
plish it in a different manner, than is provided for in the incor-
porating act. So they have no power, after their incorporation,
to change. All changes must be sanctioned by the state."
SEC. 486. The Management of the Corporation Business.-
The management of the business of a corporation is distinct
from the management of the corporation itself.”
The incorporators, stockholders or members never manage
the business; they always appoint agencies. These are called
the Officers, and in a money corporation are usually the presi-
dent and board of directors. The secretary and treasurer are
employees rather than managing Officers.
The officers of a corporation have the implied power to man-
age all the business concerns of the corporation without con-
sulting the stockholders.” - -
They have the power to adopt by-laws for the guidance and
management of the affairs of the corporation. They have no
power to make fundamental changes in the articles of associa-
tion, nor to transact any business not within the scope of the
objects for which the corporation is constituted.*
In fact, they are the agents of the corporation, and are not
the agents of the members, except in so far as they are expressly
authorized to act for the members.”
SEC. 487. By-laws.- Among the implied powers of corpo-
rations is the one to make by-laws, although the incorporating
act generally expressly provides for it."
1 Willis v. Central Ry. Co., 41 N. J.
Eq. 5; Zabriskie v. Hackensack &
N. Y. Ry. Co., 18 id. 178. See these
cases as to the effect of legislative
acts purporting to make changes.
They are very often cited.
2 Railway Co. v. Allerton, 18 Wall.
233; Eidman v. Bowman, 58 Ill. 444;
McNulta v. Corn Belt Bank, 164 Ill.
427.
3 Id.
4 All such acts are ultra vires.
* It is a well-established principle
that in partnerships and general asso-
ciations the majority cannot change
or alter their fundamental articles of
partnership against the will of the
minority, however small, unless there
is an express or implied provision in
the articles themselves that they may
do so. March v. Railway Co., 43 N. H.
515. The same principle applies to cor-
porations. See Livingston v. Lynch,
4 Johns. Ch. 571; Byrne v. Schuyler
Elec. Co., 65 Conn. 336; Zabriskie V.
Hackensack Ry. Co., 18 N. J. Eq. 178;
Allerton v. Chicago City. Ry., 18 Wall. .
233; Eidman v. Bowman, 58 Ill. 444;
McNulta v. Corn Belt Bank, 164 Ill.
427; Farmers' Ins. Co. v. Knight, 162
Ill. 470–80.
6 By-laws.--It is not essential that
a corporation have by-laws, especially
where the charter sufficiently indi-
§ 487.] IPRIVATE CORPORATIONS. 575,
Members’ By-laws.--It is sometimes the practice for the
incorporators or members to formulate a code of by-laws for
the direction of the Officers, and with unanimous consent it
would appear competent for the members to constitute the
board of directors or managing officers their agents to act in
and about their own peculiar affairs, such as voting for them
by proxy; performing acts in the nature of acts of members,
which only the members could do excepting for this authority;
that is, change the methods of doing business with the consent
of the state, or changing articles of association with like con-
sent; but in such action taken by the directors, they would act
as the agents of the corporators or members, rather than as
the agents of the corporation."
Directors’ By-laws.--In order that the proceedings of the
managing officers shall be controlled by some uniform order
and method, it is usual for them to adopt by-laws for their
future guidance, so that the movements of the corporation shall
be Orderly rather than erratic, and the members may know in
advance what to expect, and may be able to investigate or con-
trol after a fact has transpired.”
The directors have ample power to make by-laws without
express authority from the members.” While the members.
may give them additional authority to make by-laws effecting
their interests, a general authority to make, alter or repeal all
by-laws does not authorize such a delegate body to make
changes in the fundamental features of the articles of associa-
tion.*
cates the manner of doing business.
Thomas v. Dakin, 22 Wend. 70. By-
laws of a corporation adopted by
members amount to a contract be-
tween the members and the corpora-
tion, and they are also in the nature
of a law unto the body. Kent v.
Quicksilver Min. Co., 78 N. Y. 159;
Brick Presbyterian Church v. City
of New York, 5 Cow. 538. The by-
laws of a corporation, passed under
direction of a statute which requires
that the corporation prescribe for
the doing of an act, amount to more
than a mere private contract, and
such a provision may amount to a
public law, and authorize mandamus
to compel its execution. Bassett v.
Atwater, 65 Conn. 363.
I Byrne v. Schuyler El. Mfg. Co., 65.
Conn. 336; March v. Railway Co., 43.
N. H. 515.
2 These by-laws must be reasonable
and conform to the charter. Reg. v.
Governor, etc., 6 Ad. & El. 717; 51
E. C. L. 716; People's Home Ins. Co.
v. Supreme Court, 104 Cal. 649.
32 Wilson's Works, 270; 1 Blk. Com.
475.
4 McNulta v. Corn Belt Bank, 164
Ill. 427; Allerton v. Chicago City Ry.
Co., 18 Wall. 233; Livingston v.
576 PRIVATE CORPORATIONS. [$ 488.
The reasoning upon which these rules depend is well estab-
lished and easily understood. The articles of association of a
corporation constitute the contract entered into between indi-
viduals, and it is fundamental that a contract would not be a
binding obligation if one or any part of the number less than
all might change its stipulations without the assent of the other."
SEC. 488. Agreement to Become a Member — Subscriptions.—
Individuals may become members of associations or corpora-
tions by signing this original agreement called the articles of
association. In some cases the agreement takes the form of
subscription for stock.” e \
This assent is sometimes sought by means of personal repre-
sentations of promoters or other members, or by statements in
a prospectus, and the subscriber has a right to rely upon any
representations made to him,” and may resist the payment of
his subscription because of attempts to divert the corporation
from the plan set forth in the articles of association," or because
of these misrepresentations. Any material change in the ob-
jects or methods constitutes a good cause for a refusal to pay a
subscription.
Lynch, 4 John. Ch. 573; Stevens v.
Davison, 18 Gratt. (Va.) 819; March
v. Railway Co., 43 N. H. 515.
1 Venner v. Atchison, T. & S. F. R.
Co., 28 Fed. Rep. 581; March v. Rail-
way Co., 43 N. H. 515. “It is an ad-
mitted principle which pervades all
contracts whereby persons associate
themselves together, whether part-
nerships joint-stock associations, or
corporations, that a vote of the ma-
jority cannot change or alter the
fundamental articles of copartner-
ship or association against the will
of a minority, however small, unless
there is an express or implied pro-
vision in the articles themselves that
they may do so.” March v. Railway
Co., 43 N. H. 515; Byrne v. Schuyler
Elec. Mfg. Co., 65 Conn. 336. “The
awthority to pass by-laws is, as a
matter. of course, authority to pass
such as are consistent with the ar-
ticles of association, and not a power
to subvert the law of corporate ex-
istence. The by-laws of a corpora-
tion are only rules and regulations as
to the manner in which the corporate
powers shall be exercised. Any at-
tempt on the part of defendant, by
by-laws or otherwise, to deprive an
unconsenting stockholder of the
right secured to him by the corpo-
rate articles, is in excess of defend-
ant's authority, or, in legal parlance,
wltra vires.” Bergman v. St. Paul
Mut. B. Ass'n, 29 Minn. 275; 9 Am.
Corp. Cas. 496; Livingston v. Lynch,
4 Johns. Ch. 573.
2 One may become a subscriber by
actually signing the subscription or
by authorizing his signature. Kern
v. Chicago Brewing Ass'n, 140 Ill.
371. See 1 Cook, Stock and Stock-
holders, Sec. 52.
3 Kent Co. v. Wilson, 5 Houst. 49;
Nockell v. Crosby, 3 B. & C. 824.
4 Banet v. Alton & S. Ry. Co., 13 Ill.
504.
§ 489.] PRIVATE CORPORATIONS. 577
SEC. 489. Payment of Subscription.— In form the subscrip-
tion to capital stock is an agreement to take so much of the
capital stock at par; i. e., if the shares are $10, to pay $10
therefor. - -
In the scheme of financial manipulation, on account of which
the corporation has become famous, the intention to pay is sel-
dom manifested in any other way than in this expression in the
subscription, and it has become the habit of directors and man-
agers to issue stock without full payment, taking in exchange
therefor some commodity, patent-right privilege, franchise Or
abstract idea at a fabulous and fictitious valuation.
This manipulation passes under the name of watered stock,"
and in many instances the consideration is so ethereal that
watered seems too substantial a designation. .
If that which is given and received has some tangible or ap-
preciable value or efficacy as a means of enabling the corpo-
ration to accomplish the object of its creation and earn a divi-
dend, though it be but a trade-mark, good-will, a patent,” or a
formula for medicine, it is admissible to issue stock for a fair
valuation, and courts will not hold stockholders liable for mere
mistake in the valuation. The Overvaluation must be of such
a nature as to amount to a fraud; * but where the Overvaluation
is palpable, or designed merely as a cover, it amounts, irrespect-
ive of intent, to a fraud upon the creditors, and they have a
right to recover of the stockholders the difference between the
value of that given and the amount of their subscription.*
1 See Cook on Corporations, ch. III.
2See Whitehill v. Jacobs, 75 Wis.
474.
3 Handley v. Stutz, 139 U. S. 417;
N. T. W. Co. v. Gilfillan, 124 N. Y.
302; Sprague v. Nat. Bank of Am.,
172 Ill. 149. This last is one of the
most important cases in the books,
and should be particularly studied.
4 Sprague v. Nat. Bank, supra.
Defendants organized a corporation
with a capital stock of $250,000, and
subscribed for the whole amount. In
payment of their subscription they
transferred to the company, with-
Owt actual fraud, a bond for title
to land, for which they had paid
only $5,000. For the balance of the
purchase-money the company exe-
cuted its notes. Held, that under
the constitution of Alabama (art.
15, §6), and code of Alabama, 1876
(§ 1805), defendants are liable to cred-
itors of the corporation to the extent
of the difference between the value
of the property and the amount of
their subscription. Elyton Land Co.
v. Birmingham Warehouse and Ele-
vator Co., 92 Ala. 407. It has been
held that the persons who have be-
come creditors of the corporation by
having dealt with the corporation
with full knowledge of an arrange-
ment by which stock was issued at
37
378 PRIVATE CORPORATIONS. [$490.
SEC. 490. Corporation Affairs and Business.-A little reflec-
tion renders it easy to perceive that a corporation may have
affairs distinct from the business which it is the object of the
corporation to transact.
As we have seen, the corporate franchises belong to the cor-
porators or members, while the business franchises belong to the
corporation. These latter are the franchises to perform the par-
ticular functions which it was the object of the corporators to
seek by incorporation. This is generally the transaction of
the corporation business, if it be a business corporation; the
prosecution of the particular enterprise or charity, if it is a cor-
poration not for profit; but, in any event, the particular office
and function of the agents of the corporation—that is, its offi-
cers—is the transaction of the corporation business.
Most important results depend upon this distinction. An
authority to transact the business of a corporation does not
vest in the directors authority to change the articles of asso-
ciation, or to perform corporate acts which are appropriately
and essentially the acts of the corporators."
The members, by giving a general authority to perform all
less than its face value could not
recover against the stockholders.
First Nat. Bank v. Gustin Min. Co.,
42 Minn. 327; Coit v. Amalgamat-
ing Co., 119 U. S. 343. In the late
Illinois case above cited, it was held
that the fact that a creditor dealt
with a corporation with full knowl-
edge as to the manner in which the
subscription was paid did not de-
prive him of his remedy. It was held
in another case that where the cred-
itor was also a stockholder, and ex-
tended the credit with full knowl-
edge, he could not, in the absence of
fraud, enforce an individual liability
against other stockholders. White-
hill v. Jacobs, 75 Wis. 474.
A copartnership was formed to
buy Certain property, thereafter to
be conveyed to a corporation to be
formed, and stock issued to each
partner at $70 per share, of the value
of $100 per share, according to the
capital contributed. One partner,
who became president of the corpo-
ration, was to contribute $490,000.
Ełe issued stock to himself accord-
ingly, but in fact only contributed
$133,000, and gave notes for the bal-
ance, which he afterwards paid with
the corporation’s funds. Held, that
the issue of stock by the president to
himself over the amount actually
paid for with his own money was
fraudulent. Huiskamp v. West, U.
S. C. C. (Ill.), 47 Fed. Rep. 236.
The stockholder sought to be
charged must be connected with the
fraud. Am. M. & G. Co. v. Buckley,
107 Mich. 447. See Burns v. Beck,
83 Ga. 471; Hawes v. Petroleum Co.,
111 Mass, 200; Manufacturing Co. v.
Bank, 6 Rich. Eq. 227. }
1 Eidman v. Bowman, 58 Ill. 444;
Reichwald v. Hotel Co., 106 Ill. 439;
Allerton v. City Ry. Co., 18 Wall. 233;
Bastian v. Modern Woodmen, 166 Ill.
595.
§§ 491, 492.] PRIVATE CORPORATIONS. x 579
corporate acts and transact all business, do not authorize the
board of directors to exercise all the powers which the mem-
bers themselves might exercise." -
SEC. 491. Limitation on Powers of Members.-The charter
which designates the manner in which the business shall be
transacted is also a limitation on the members and any major-
ity thereof. - -
The members, by their articles of association prior to or con-
temporaneous with accepting the charter, cannot designate any
different agencies or methods from those pointed out in the
charter, and after the incorporation is complete they cannot
change the control and management of the corporation from
the agencies and methods pointed out in the charter, unless ex-
pressly authorized so to do.” }
SEC. 492. Changing the Articles of Association or Charter.—
As between the corporation, its members, its agents and the
state, or between any and all of them, the charter is a contract
and cannot be changed without the assent of all.” Unless there
is a reservation in the laws of the state providing for the power
to change or repeal such charters, the state cannot change the
charter of a private corporation.”
The state, however, may authorize a change, which may be
consummated by acting upon the authority; but it is not within
the power of the directors alone to accept such a change.
A stockholder cannot have a fundamental change forced
upon him.
It follows that any attempt to change by any delegated body,
whether it be a board of directors or other delegate body, such
as is generally found in Free Mason societies, or voluntary in-
demnity associations, like the Grand Lodge of Free Masons or
the Head Camp of the Modern Woodmen of America, would
be of no effect.”
The act of change, like the original act of incorporation or
1 Id. J. 365; 31 Am. Tec. 72; State v. Ad-
2 Chicago Mut. Ben. Ass’n v. Hunt, ams, 44 Mo. 470; 3 Withrow, Corp.
127 Ill. 347; Byrne v. Schuyler El Cas, 515; Braceville Coal Co. v. Peo-
Mfg. Co., 65 Conn, 336. ple, 147 Ill. 66.
3 Mills v. Cent. R. R. Co., 41 N. J. 5 Bastian v. Modern Woodmen, 166
Eq. 5. Ill. 595; Railway Co. v. Allerton, 18
*Id.; Regents v. Williams, 9 Gill & Wall. 233; Livingston v. Lynch, supra.
580 PRIVATE CORPORATIONS. [$493.
act of dissolution, is an original constitutional act of agree-
ment."
If these principles are kept in view, nearly all the questions
concerning directors’ powers, stockholders’ powers, and the
power to consolidate and combine and enter into trusts, may
be quite easily solved.” .
SEC. 493. Change of Membership.–Thus far we have only
spoken of the manner of becoming an Original or charter mem-
ber; but one of the essential objects of a corporation is to pro-
vide for the change in the membership without affecting the
corporate capacity or identity. This is what is called perpet-
ual succession. That is, members come and go, join and lose
their membership, but the corporation does not change.
In stock companies this is accomplished by the transfer of
the stock;” and connected with the transfer of capital stock
will be encountered some difficult problems, namely, the lia-
bility of the person selling and the liability of the person pur-
chasing the stock. The new member assumes the stock with
all its liabilities, so far as third persons are concerned; but Or-
dinarily by selling the stock a member does not escape any
personal liabilities which had accrued at the time of the sale.
The new member steps into the shoes of the old."
It depends upon the law of the state in what manner this
1 Livingston v. Lynch, 4 John. Ch. equity to compel the transfer. Rals-
573. The act of change is not a cor-
porate act, but the act of members.
Byrne v. Schuyler El. Mfg. Co., 65
Conn. 336.
*The principle pervades all con-
tracts whereby persons associate,
whether partnership, joint-stock as-
sociations or corporations. March
v. Railway Co., 43 N. H. 515.
* A provision in the by-laws requir-
ing a transfer to be registered affects
only the members. The actual as-
signment vests the title and changes
the membership. Parker v. Bethel
Hotel, 96 Tenn. 252. A refusal by the
officers to make a transfer when prop-
erly applied for amounts to a con-
version of the stock. The parties
injured may sue in trover for the
value, or they may bring a suit in
ton v. Bank, 112 Cal. 208; Cook on
Stock, etc., §§ 289–292. Where the
charter or by-laws provide that the
stock shall be security for a stock-
holder’s indebtedness to the corpo-
ration, and the purchaser is charge-
able with notice, he purchases subject
to the rights of the corporation. Id.
*The purchaser or assignee of stock
which has not been fully paid does
not become liable to corporate cred-
itors for the unpaid balance, where
the stock has been issued as fully
paid, and he has acquired the same
in good faith, and without notice
that it has not been fully paid. A
creditor in such a case would have a
remedy against the Original stock-
holder. Sprague v. Nat. Bank of
America, 172 Ill. 149.
§ 494.] . PRIVATE CORPORATIONS. 581
transfer is made, and when it may be considered complete;
whether the mere assignment of the stock shall constitute the
complete change, or whether the change is not consummated
until the transferred stock is noted on the registration books of
the corporation, -
SEC. 494. Locality, Residence, Citizenship.–
JLocality.—A corporation charter is in the nature of a com-
mission from the state to the members and their successors in
interest, whether at home or abroad.
It creates them a person artificial, it is true, but with the
power to migrate and prosecute the object of its existence wher-
ever by the comity of nations its natural citizens might go."
Each government in the creation of corporations exercises
its own discretion and determines the conditions of its grants.
It may, or may not, impose territorial restrictions.”
A state cannot enlarge its own jurisdiction; consequently, it
cannot create a corporation which must be regarded as a cor-
poration outside of its own territory;” but it can confer gen-
1 Merrick v. Van Santvoord, 34 N.Y.
208; Female Academy v. Sullivan,
116 Ill. 375.
Tramp Corporations.—A practice
has grown up by non-residents of in-
corporating in a state where the laws
are more favorable than the laws of
the state where the corporation in-
tends to do business, and where its
principal stockholders dwell. Such
parties frequently seek to evade the
spirit of the law by having a nom-
inal office within the state giving the
charter, and transacting some slight
business there; for example, having
a desk in some attorney’s office.
These have become sufficiently nu-
merous to have recognition, and
are known in common parlance as
“tramp corporations.” Several of the
states have forfeited charters be-
cause of the evasion. State v. P. &
N. Lumber Co., 58 Minn. 330; 1 Am.
& Eng. Corp. Cas. 24–26. Others are
held liable as partners, the nominal
incorporation being ignored. Hill v.
Beech, 12 N. J. Eq. 31; Booth v. Won-
derly, 36 N. J. L. 250; Montgomery v.
Forbes, 148 Mass. 249; Cook On Stock
& Stockholders, $238. .
2 Id. While a corporation is for cer-
tain purposes within the fourteenth
amendment, that amendment is not
a limitation upon the power of a
state to entirely exclude a foreign
corporation from doing business
within its limits or from exacting
conditions on that account. The
Only restriction on the state in that
regard is, first, where the corporation
is an agency of the government, or
its business is strictly interstate or
foreign commerce. Pembina Silver
Min. Co. v. Pennsylvania, 125 U. S.
181. But if a state allows a corpo-
ration to transact business and un-
dertakes to exact conditions, these
conditions must not be repugnant to
the constitution or laws of the United
States. For example, a condition
that they shall not remove their suits
to the federal courts. Barron v.
Burnside, 121 U. S. 186.
8 Rules of Comity do not require a
582 PRIVATE CORPORATIONS. [$494.
eral powers to be exercised wherever the comity of nations is
respected for the purpose of commerce. Such a commission is
regarded like a government flag, as a symbol of allegiance and
authority, and to a certain extent it is entitled to recognition
abroad until it forfeits its existence at home; but a corpora-
tion, as such, can exist only in the state creating it.
It may transact business wherever the rules of comity pre-
Vail, but it cannot perform a strictly corporate act beyond the
state of its existence."
Mr. Thompson enjoins the necessity for carefully observing
the distinction between acts done by the members in their
capacity as corporators and by directors in their capacity of
agents or trustees.
that the members are in fact the corporation, while the direct-
ors are never anything more than agents appointed to transact
business.” - - :
A state has an undoubted right to confer upon citizens of a
foreign state a corporate capacity, but such an incorporation
need not be recognized in any other state; and it has been held
that meetings to accept the charter and strictly corporate meet-
ings must be held within the state of the creation.”
The views above stated are but the logical results of the view
that a corporation is an intangible, artificial person created by
the sovereign authority, and this artificial capacity must be
kept at all times within the control and quasi-visitorial powers
of the jurisdiction creating it. -
Residence.—The residence or domicile of a corporation, like
that of a natural person, may be regarded from a double as-
pect, and a corporation may be held to be, for business pur-
poses, a resident of many different localities; and so a foreign
This is really but a corrollary of the fact
state to allow a foreign corporation
to do what it will not allow its do-
mestic corporations to do, and a
state may exclude entirely a foreign
corporation from doing business
within its boundaries. Hartford Ins.
Co. v. Peoria, 156 Ill. 420. A corpo-
ration organized with authority to
transact business everywhere except-
ing in the state of its creation has
no standing under the rules of com-
ity. I. G. Co. v. Com., 6 Kan. 645.
11 Thomp. Corp., sec. 55. See Drum-
mond Tobacco Co. v. Randall, 114 Ill.
412; Merrick v. Van Santvoord, 34
N. Y. 208; Bastian v. Modern Wood-
man, 166 Ill. 595.
2 Cook, Stock and Stockholders,
§ 588; People v. N. R. S. Ref. Co., 121
N. Y. 619; Camp v. Byrne, 41 Mo. 525.
3 Miller v. Ewers, 27 Me. 509; 46
Am. Dec. 619. See Cook, Stock and
Stockholders, where the subject is
fully discussed (chs, 13, 36, 41).
Q
$495.]
PRIVATE CORPORATIONS. 583
corporation may be a resident, for the purposes of suit, of any
state where it does business;' but a domestic corporation is
entitled to be sued, like any other citizen, in the county of its
residence, unless a statute provides otherwise; and hence, al-
though it may have agencies or subordinate bodies in various
counties or districts, for the purpose of suit its residence is in
the county where its principal business office is located.”
Citizenshºp.–The citizenship and residence of a corporation
may be distinguishable for certain purposes. For example, the
jurisdiction of the United States courts depends upon the cit-
izenship of litigants. -
Formerly the citizenship of corporations was held to depend
upon the residence of the majority of its stockholders; but this
view has been gradually set aside, until now the corporation
is conclusively presumed to be a citizen of the state creating it.”
SEC. 495. Powers of Directors.--From what has been said,
the logical conclusion coincides with the legal rule that inas-
much as the members or corporators are not the agents of the
corporation, the corporation itself—that is, as an instrument to
accomplish its objects — must have agents.”
1 See an article by Seymour D.
Thompson in 42 Central Law Jour-
nal, No. 11.
2 Taunton v. Whiting, 9 Mass. 321;
N. W. L. Ass’n v. Stout, 32 Ill. App.
31; U. Mut. Life Co. v. Reil, 38 Ill.
App. 414; Galveston, etc. Ry. Co. v.
Gonzales, 151 U. S. 496.
& As early as 1809 it was held that
the citizenship of the members must
determine the citizenship of the cor-
poration. Hope Ins. Co. v. Boardman,
5 Cranch, 57; Bank v. Deveaux, id.
61. This rule was approved in 1839.
Bank v. Earle, 13 Pet. 519. The un-
wisdom of the rule was soon per-
ceived, and the rule given in the text
declared. Louisville Ry. v. Leston, 2
How. 497 (1844). See Maltz v. Am. Ex.
Co., 1 Flip. 611; 16 Fed. Rep. 566. This
rule has been consistently adhered to.
Muller v. Dows, 94 U. S. 444; Pensa-
cola Tel. Co. v. W. U. Tel. Co., 96
U. S. 1; N. & L. Ry. Co. v. Boston &
L. R. Co., 136 U. S. 356; St. L. & San
F. Ry. Co. v. James, 161 U. S. 545.
4 Cook, Stock and Stockholders,
§ 11. “The shareholders, and not
the directors, constitute the company
when there is stock.” Simons v. Vul-
can Oil & Mining Co., 61 Pa. St. 221.
“The directors are the agents of the
Company, and not the Company it-
self.” Ohio & Miss. R. R. Co. v. Mc-
|Pherson, 35 Mo. 13; Miller v. Ewer,
27 Me. 509. “In Railway Co. v. Aller-
ton, 18 Wall. 233, in speaking of what
may be done by the directors, and
what by the stockholders, in a case
where the charter provided that “all
the corporate powers of Said Corpora-
tion shall be vested in and exercised
by a board of directors, and such
officers and agents as Said board shall
appoint, the court say: ‘The general
power to perform all corporate acts.
refers to the Ordinary business trans-
actions of the Corporation.” And
584 FRIVATE CORPORATIONS. [$495.
The natural legal agents are the managing officers usually
provided for in the charter — president, directors, secretary,
treasurer, and other agents under whatsoever name." The busi-
ness affairs of the corporation are under their direction.” It is
Ordinarily competent, without express authority, for the direct-
ors to appoint sub-agents for the transaction of mere ordinary
business, who are subject to the ordinary rules of agency.”
The relation of agency being a fiduciary one, it follows that
directors holding a position of trust and confidence are subject
to rules governing that relation, but they occupy as to many
matters the higher relation of trustee.*
Any action of the directors contrary to the objects of the
corporation, or beyond the scope of their powers, constitutes a
again: ‘If the charter provides that
the capital stock may be increased
by the corporation, this is un-
doubtedly authority for the corpora-
tion (that is, the stockholders) to
make such a change by a stockhold-
ers’ vote in the regular way.’” Wood
v. Whelan, 93 Ill. 153.
1 Important results depend upon
whether the agency fall within the
nature of a trust relation or merely
the ordinary fiduciary relationship
of general ministerial agents. Cook
v. Berlin Mills Co., 43 Wis. 433.
* Reichwald v. Commercial Hotel
Co., 106 Ill. 439. The directors, being
in that capacity only agents, need
not be members unless the charter so
provides. 1 Cook, Stock and Stock-
holders, $ 11. If an act is required
to be done by the directors, and a re-
cital is made that it is done by the
company, it is the same in law.
Williams v. German Mut. F. Co., 68
Ill. 387. But the converse is not
always true; for where permission
or direction is given to the corpo-
ration, it depends entirely upon the
nature of the act as to whether it
may or must be done by the stock-
holders Or the directors. This dis-
tinction is one of the most impor-
tant, not only as between members
and managing agents, but as to
transactions with third persons. The
rule is that one dealing with the
agent of a business corporation in a
matter relating to its business opera-
tions, and not involving its corporate
functions, is not charged with notice.
of its by-laws; but if the transaction
involves corporate functions, even a
Stranger must look to the fountain-
head for authority. In the matter of
the private business which it was the
object of the corporation to transact,
the powers of an apparently general
agent cannot be limited as to third
persons by by-laws. It is sometimes
Said that the Only general agents of
a corporation are its directors, but
this is not the law. Employees hired
by the directors may in the sense of
Commercial law be agents. Johnson
v. Milwaukee & W. Inv. Co., 46 Neb.
480. See also Rathbun v. Snow, 123
N. Y. 343; Babcock's Exºr v. Alle-
gheny Coal Co., 82 Va. 913; Relfe v.
Rundle, 103 U. S. 222; Mont. Furn.
Co. v. Hardaway, 104 Ala. 100.
3 Cook, Stock and Stockholders,
§ 715.
4 Hoffman Steam Coal Co. v. Cum-
berland Coal Co., 16 Md. 456; S. C., 22
Md. 495; Farwell v. Great W. Tel. Co.,
161 Ill. 596; G., C. & S. F. Ry. Co. v.
Kelley, 77 Ill. 437.
§ 496.] IPRIVATE CORPORATIONS. 585,
fraud upon the stockholders, irrespective of any actual intent,
or even though the intent was shown to be innocent, and the
act intended to be beneficial;” and while the corporation may
be bound by the ultra vires conduct, the members have a right
to call the directors to account or restrain their further action.”
The directors have a wide discretion in the management of
the corporate business, and are not liable to the corporation
or members for mistakes in judgment; neither are they obliged
to ask the advice of the stockholders, even in important trans-
actions; but, on the contrary, unless their acts are tainted with
fraud, they have a right to act upon their own judgment, even
against the will of a majority of stockholders.”
SEC. 496. Stockholders' Rights and Liabilities.—The stock-
holders in theory furnish the capital,” and it depends upon their
sagacity, prudence and foresight what further interest they
shall preserve in the concern; for unless special provision is
made in the articles or members’ by-laws,” the stockholders, as
such, have no control whatever over the capital or the man-
agement of the business."
They may elect new officers at the stated time, or they may
1 March v. Railway Co., 43 N. H.
515.
2 Byrne v. Schuyler El, Mfg. Co., 65
Conn. 373.
3.Sec. 497. -
4 Cook, Stock and Stockholders,
§ 11; Humphreys v. McKissock, 140
TJ. S. 304; Smith v. Hurd, 12 Met.
371–85.
5 In practice, very often, innocent
third persons advance the money on
the bonds of the company; or in
other cases a deluded public grants
aid. The latter scheme is practically
worn out; the former is becoming
unpopular with investors. “In an
epigrammatic way it has been said
that a new railroad is not in a sound
physical and financial condition until
the bondholders have closed out the
stockholders and a receiver has closed
out the bondholders.” Cook's Corp.
Problem, 63.
6 Park v. Grant Locomotive Works,
40 N. J. Eq. 114,
7 Cook on Stock and Stockholders,
§ 11. “It is a well-recognized princi-
ple of law that the directors of a cor-
poration, and they alone, have the
power to declare a dividend of the
earnings ofthe corporation, and to de-
termine its amount. 5 Am. & Eng.
Ency. of Law, 725. Courts of equity
will not interfere in the management.
of the directors unless it is clearly
Tmade to appear that they are guilty
of fraud or misappropriation of the
corporate funds, or refuse to declare a,
dividend when the corporation has a
surplus of net profits which it can,
without detriment to its business,
divide among its stockholders, and
when a refusal to do so would amount.
to such an abuse of discretion as:
would constitute a fraud, or breach
of that good faith which they are
bound to exercise towards the stock-
holders.” Hunter v. Roberts, Thorp
& Co., 83 Mich. 63.
586 IPRIVATE CORPORATIONS. [$ 496.
meet and dissolve the corporation, under certain restrictions;
but these are barren rights, and practically efficient only as
a means of saving some remnant from the wreck.
The rights of the stockholders, aside from their power to
change the Organization, are merely negative, and consist in
such remedies as the law provides them to protect the corpo-
ration and themselves from plunder by the officers. -
Shareholders seldom recognize, before entering into member-
ship, that their greatest danger is not on account of liability to
third persons, or of loss because of the perils of the venture, but
that it lies in the direction in which they have a right to expect
the greatest measure of protection, namely, from their manag-
ing officers.
This subject is a most practical one connected with the subject
of corporation law. The methods of perpetrating and conceal-
ing fraud and perpetuating power on one hand, and the mode
of detecting and relieving against it on the other, has resulted
in producing a system of rules making up in volume probably
one-third of the subject of corporation law.
The experience of the complainant in the last case cited on
the preceding page is too frequently the result of litigation.”
The Corporate Farnings are Beyond the Power of the Stock-
holders.--The managing officers alone have the power to declare
1 Wheeler v. Pullman T. & S. Co.,
143 Ill., 197.
2 In a paper read before the New
York State Bar Association at its
annual meeting in 1896, Henry Wy-
nans Jessup, A. M., L.L. M., said: “A
great body of judicial decisions has
grown up in England bearing on the
frauds of corporate promoters, agents
and directors. In this country the
cases involving breaches of trust by
the managers of Corporations are far
more numerous than those involving
promoters.”
Mr. Cook, himself an able and suc-
ºcessful corporation lawyer, and speak-
ing no doubt from observation, says
in his work on Corporations: “In
these latter days the robbery and
spoliation of Corporations and stock-
holders by the corporate directors
and managers have been systema-
tized into well-known methods of pro-
ceeding, and the carrying out of such
plans has become a profession and an
accomplishment. The skill, audacity,
experience and talent of the highest
order of administrative ability have
reduced to a certainty the methods
of diverting profits, capital, and even
the existence, of the corporation it-
self, to the enrichment of the corpo-
rate managers and their co-conspira-
tors. Corporations become insolvent,
and stockholders lose their invest-
ment, while individuals become mill-
ionaires. Illegitimate gains are Se-
cured and enormous fortunes are
amassed by the few at the expense
of the defrauded and generally help-
less stockholders.” Cook on Stock
and Stockholders, $643.
$497.]
PRIVATE CORPORATIONS. 587
and pay out the profits by way of dividends." They have
the right to reserve the accumulated profit and re-invest it at
their discretion, and thereby they may increase the volume of
the business, and, theoretically, the magnitude of their respon-
sibility as agents, and this frequently serves as a pretext for
increasing their compensation.” -
The opportunity of the managing officers is great and their
returns immediate. Not so the compensation of the stock-
holder. Whatever rights the members have after once em-
barking upon the venture are mere so-called equitable rights,
occasioned by wilful fraud or a palpable abuse of discretion,
to be enforced through the devious ways of the chancery courts.
The burden of proof in this class of agency is upon the prin-
cipal, and the quantum must exceed a showing that there was
error and established fraud. The gist of the bill is fraud.”
SEC. 497. Remedy of the Stockholders Against Officers."—
Wherever, by reason of neglect” of duty or fraudulent miscon-
duct of the directors or other officers, the funds of the corpo-
ration have been lost or misapplied, the injury is in legal
theory done to the corporation, but practically and immediately
it affects the stockholders.
The relief afforded is always tardy, and never certain. This
results from the peculiar nature of a corporation and the essen-
tial forms of law.
First, it is for the corporation to call the officers to account
for their negligence or misconduct. The action is not one
which the stockholder may himself bring directly against the
offending officer or officers, or against the corporation in the
first instance." -
1 Cook, Stock and Stockholders,
§§ 534–545; Hunter v. Roberts, Thorpe
5 An action lies for negligence
(O’Brien v. Fitzgerald, 39 N. Y. Sup.
& Co., 83 Mich. 63.
2 Cook, Stock and Stockholders,
§ 545.
3 State of Louisiana v. Bank, 6 La.
745. See Cook, Stock and Stockhold-
ers, chs. 32–42; Miner v. Belle I. I.
Co., 93 Mich. 97. See Cook, Stock,
etc., § 545, notes. -
*The forms of suit, parties and ju-
risdiction are treated under “Proced-
ure.”
707), or embezzlement allowed by neg-
ligence. Empire S. Bank v. Beard, 30
N. Y. Sup. 756; 81 Hun, 184.
6In Green v. Hedenberg, 159111. 489,
the court deemed it well settled that,
where the corporate officers wrong-
fully deal with the corporation's prop-
erty to the injury of the stockholders,
the latter, even if only holding stock
shares as pledgees, may maintain a
bill against the company and its
§88 IPRIVATE CORPORATIONS.
[$497.
It is obvious that where wrong is committed by a majority
of the managing officers they will refuse to bring the suit. In
that instance the member has the privilege of bringing a suit
in equity on behalf of the corporation and all the other stock-
holders situated in the same relation to bring the offending
officers to account." º
If the action which affects the stockholder consists of a pre-
tended act of the corporation, though manipulated by the direct-
Ors, the corporation should be made a defendant and not a com-
plainant. Generally, the corporation must be a party. -
Where the suit relates to the money or property of the cor-
poration, the money must go back into the treasury of the cor-
poration.
Where the complaint relates to contemplated illegal or ultra,
wires acts of the corporation, such acts are restrained and the
corporation compelled to resume its proper status.”
Mr. Cook says: “The expense, difficulty and delays of litiga-
tion; the power, wealth and unscrupulousness of the guilty
parties; the secrecy, skill and evasive nature of their methods,
and the fact that the results of even a successful suit belong to
the corporation, and not to the stockholders who sue, all com-
bine to baffle investigation and exposure, to discourage the
stockholders and to encourage and protect the parties guilty of
the wrong.”.”
The real remedy lies in the prevention: First, by provisions
in the articles of association for the calling of special meetings
to remove officers; second, power in the same body and in the
same manner to declare dividends and require their payment;
third, a more rigid criminal code in reference to this class of
vandalism.
officers for relief against such mis-
appropriation. But before bringing
such a bill, a demand must be made
upon the proper officers to bring
the action, unless there is a reason-
able certainty of non-compliance with
such demand. Some courts have er-
roneously proceeded to argue that
such a demand partakes of the juris-
diction of the cause, as held by the
first district appellate court of Illi-
nois in Weigley v. People, 51 Ill.
App. 51. -
1 Green v. Hedenberg, 159 Ill. 489;
Waymire v. San F. & S. M. Ry. Co.,
112 Cal. 646.
2 Pollock v. Farmers’ L. & T. Co.,
157 U. S. 429; Bastian v. Modern
Woodmen, 166 Ill. 595.
8 Cook on Stock and Stockholders,
§ 643.
§ 498.] JPIRIVATE CORPORATIONS.
589
SEC. 498. Directors’ Contracts.-The directors and managing
officers of the company are the agents of the corporation and
are under all the liabilities and disabilities incident to that re-
lation.
The directors, or those officers to whom are intrusted matters
of discretionary management, are also trustees as well as agents.
The essential distinction between the two cases is that a
trustee has a title to the subject of his property, distinct from
his interest, while the agent has no title. Upon this distinction
it has been claimed that the directors are only agents; and
While the situation is anomalous, the directors are held under
all the disabilities and obligations of trustees."
It would naturally follow upon the principles ordinarily ap-
plied to trustees having a title, that directors cannot purchase
property directly from the corporation through themselves.”
It seems to be well settled that a director may make a valid
purchase of the property of the corporation, notwithstanding
the transaction must in form and effect be a purchase from
himself of the subject of his trusteeship.”
It is, however, a question upon which there is not entire
harmony, whether such a purchase derives its force and valid-
! “In Ex parte Chippendale, 4 De
Gex, M. & G. 52, Lord Justice Turner
said that: “Although directors un-
doubtedly stand in the position of
agents, and cannot bind their com-
panies beyond the limits of their au-
thority, they also stand in some de-
gree in the position of trustees. . . .
There is no inconsistency in this
double view of the position of direct-
ors.” The views of judicial writers
and Courts have differed upon the
subject whether the relation of the
managers or directors of their corpo-
rations has the character of trustees,
in the Sense applicable to that term,
Or is that of their agents merely.
While the directors may be treated
as agents of the corporation, they
may upon authority be deemed to
have in some sense the relation of
trustees. In Poole, Jackson & Whyte's
Case, 9 Ch. Div. 322, 26 Moak, 142, Jes-
Sel, M. R., said: ‘It has always been
held that the directors are trustees
for the shareholders, that is, for the
company. They are managing part-
ners of the company, and if they
abuse their powers, which they hold
in trust for the company, to the dam-
age of the company, for their own
benefit, they are liable to make good
the breach of trust to their cestwi gue
trust like any other trustees.” And
in Peabody v. Flint, 6 Allen, 52, it
was said: “As between the Corpora-
tion itself and its officers, it was long
since held that they were trustees,
and that a court of equity would hold
them responsible for every breach of
trust.’” Empire State Savings Bank
v. Beard, 151 N. Y. 638 (for opinion,
See 30 N. Y. S. 756).
2 Cook v. Berlin Mills Co., 43 Wis.
433; Michoud v. Girod, 4 How. 557;
Davoue v. Fanning, 2 Johns. Ch. 226
(1 Lawy. ed. 377).
3 Beach v. Miller, 130 Ill. 162.
590 IPRIVATE CORPORATIONS.
[$499.
ity as a transfer merely by virtue of such a transaction having
taken place in the form of a purchase and sale."
The courts are all agreed that such a contract is voidable at
the option of the stockholders of the corporation. On the
Other hand, many courts hold, and it is believed in accordance
with policy and principle, that the contract is of no validity
whatsoever as a direct purchase and sale,” but that it may be
ratified as such by all who have a right to object, or such cir-
cumstances may transpire as to raise an estoppel against those
seeking to question the transaction.
Such result may grow out of actual acquiescence or laches.
It is straining the principle to sanction a contract between a
corporation and the directors involving a transfer of property
during the existence of the trust relation.”
In case of insolvency, a contract of the nature just mentioned
is universally held to be not only voidable, but void.
It is allowed to exist on proof affirmatively made by the
trustee of complete good faith, but it would have been wiser,
and would have saved a vast amount of property to stockhold-
ers, temptations to directors and litigation in the courts, had
the rule been simply that the property of the corporation could
not become the property of the director by virtue of any trans-
action during the existence of the trust.
Where corporation is insolvent, all authorities agree that such
a purchase by the directors is void."
SEC. 499. Eacecutive or Ministerial Officers.- As to such offi-
cers acting in the capacity of employees, a somewhat less strin-
gent rule applies. They may purchase of, lend to or borrow
1 Twin Lick Co. v. Marbury, 91 U.S.
587.
2 Cook v. Berlin Mills Co., 43 Wis.
433. See Cook on Stock, etc., § 653.
The lawyer will readily understand
the distinction above suggested, but
for the benefit of the student it may
be well to emphasize that the trans-
fer does not rest upon the contract or
grant originally made, but upon es-
toppel, laches or acquiescence; and
it follows that before such a result
can take place, there must be a full
and complete disclosure to the stock-
holders of all the facts and circum-
stances. Torrey v. Bank of Orleans,
9 Paige, 649. See Cook v. Berlin
Mills Co., supra. The subjects of es-
toppel, acquiescence and laches will
be treated elsewhere. But see Cum-
berland Coal & I. Co. v. Sherman, 20
Md. 117; 16 Md. 456; G., C. & S. F.
Ry. Co. v. Kelly, 77 Ill. 426.
*The subjects of ratification, ac-
quiescence and laches will receive
direct treatment.
4 Beach v. Miller, 130 Ill. 162.
$499.] PRIVATE CORPORATIONS.
59%
from their corporation, but the contract is not binding on the
corporation, its stockholders or creditors, but is always open to
attack, and is always handicapped with the presumption of
fraud or lack of authority.
General authority to conduct the business and to issue the
promissory notes of a corporation is authority to do those acts
J’or corporate purposes and in the interest of the corporation
Only. It does not include the power to exercise them for the
exclusive benefit of others to the detriment of the corporation.
And while a promissory note, made by an agent or officer hav-
ing such authority, in the usual form, and taken by a stranger
in the Ordinary course of business, carries with it the presump-
tion that it was issued for corporate purposes and under law-
ful authority, a note issued by such an agent, payable to himself,
is accompanied by no such presumption, but is itself notice that
it is without the scope of his general power, and that it does
not bind his principal unless its execution was specially author-
ized by the corporation, through its directors or officers, other
than the agent to whom it is payable. Such a note is a danger-
signal, which the discounter or purchaser disregards at his
peril. It is notice to him that, if it is contested, he cannot re-
cover upon it, under any general authority in the agent, or at
all, unless he proves that the agent was specially authorized to
make that particular transaction or to make contracts of the
corporation with himself."
his principal to do the act or to make
the contract. . This exception
is a striking illustration of the policy
of the law to prevent the possibility
1 Park Hotel Co. v. National Bank,
86 Fed. Rep. 742. In this case the
court adds: “To the general rule
that the acts and contracts of a gen-
eral agent, within the scope of his
powers, are presumed to be lawfully
done and made, there is an excep-
tion as universal and inflexible as
the rule. It is that an act done or a
contract made with himself by an
agent on behalf of his principal is
presumed to be, and is, notice of the
fact that it is without the scope of
his general powers; and no one who
has notice of its character may
safely rely or recover upon it with-
Out proof that the agent was ex-
pressly and specially authorized by
of conflict between the duty and the
personal interest of an officer or
agent. It prohibits him from acting
for both himself and his principal
wherever their interests clash, and
makes every act and contract in
which he violates the inhibition void-
able at the election of his principal.
It forbids him to act at the same
time as vendor and purchaser, or as
lender and borrower, or as promisor
and promisee. It forbids him to sell
as the agent of his principal and to
buy for himself; to lend as the agent,
592 PRIVATE CORPORATIONS. [$$ 500, 501.
SEC. 500. Liability to Third Persons.—Sufficient has been
said to indicate that a corporation may be liable ea contractu.
or ea delicio to third persons." The corporation need not con-
tract under seal; neither is it necessary that there be a formal
Contract; but a contract may be implied. The same rule that
Originally prohibited implied contracts prevented the courts
recognizing the liability for tort, but in modern law the corpo-
ration may be guilty of an assault and battery, a trespass or a
tort, where malice is the gist of the action, e.g., a libel.”
SEC. 501. Eleemosymary Corporations — Religious Societies,
IIospitals and Colleges.— The religious society is something of
an anomaly in American corporation law, the object of the
corporation being the prosecution of a business not controlled
of his principal and to borrow for
himself; to promise as the agent of
his principal and to accept the prom-
ise and reap the benefits himself.”
This case cites others from many
jurisdictions.
1 A charitable corporation not for
profit partakes sufficiently of a pub-
lic nature that it is not liable for torts
of servants. Hearne v. Waterbury
Płosp., 66 Conn. 98. -
Directors May Also be Liable.—The
principles of agency do not preclude
a liability against the officers indi-
vidually, so directors may be held
liable jointly with the corporation, or,
inasmuch as torts are joint and sev-
eral, they may be sued alone.
The president and general manager
of a corporation are held personally
liable in Nunnelly v. Southern Iron
Co., 94 Tenn. 397; 28 L. R. A. 421, for
damages caused to a riparian pro-
prietor by the operation of ore wash-
ers in the company’s business.
note to the case are presented other
authorities illustrating the personal
liability of officers of a corporation
for its torts or negligence.
2 Daniels v. Tearney, 102 U. S. 420.
“In State v. Morris & Essex R. R. Co.,
23 N. J. L. (2 Zabriskie), 369, it was
well said that, “if a corporation itself
In a
has no hands with which to strike, it
may employ the hands of others;
and it is now perfectly well settled,
COntrary to the ancient authorities,
that a corporation is liable civiliter
for all torts committed by its servants
Or agents by authority of the cor-
poration, express or implied.
The result of the modern cases is,
that a corporation is liable civiliter
for torts committed by its servants
Or agents precisely as a natural per-
Son, and that it is liable as a natural
person for the acts of its agents done
by its authority, express or implied,
though there be neither a written
appointment under Seal nor a vote
of the corporation constituting the
agency or authorizing the act.’ See
also Salt Lake City v. Hollister, 118
U. S. 256, 260; New Jersey Steamboat
Co. v. Brockett, 121 U. S. 637; Na-
tional Bank v. Graham, 100 U. S. 699,
702.” Denver, etc. Ry. Co. v. Harris,
122 U. S. 597–608. A corporation may
be liable to a third person on account
of the malicious acts of its officers in
prohibiting employees from trading
or doing business with him. Graham
v. St. Charles St. Ry. Co., 47 La. Ann.
1656. See Walker v. Cronin, 107 Mass.
562.
§ 502.] PRIVATE CORPORATIONS. 593
and regulated by general laws of the state. Yet such a corpo-
ration has secular affairs and property, real and personal. These
are subjected to the same rules as the property of individuals
or other corporations.
The relationship existing between the members and their
rights are largely governed by a code of rules and regulations
promulgated by each denomination or society, and, in so far
as these provide, they operate precisely as articles of associa-
tion or stockholders' by-laws agreed upon by the members, and
every member is governed accordingly; but the civil courts
still exercise a supervision to protect the rights of individuals
from arbitrary exercise of power by the corporate authorities,
both in regard to property and corporate rights."
Membership.–It is sometimes a difficult question in these
eleemosynary corporations to determine precisely what are
the constituent elements of a corporation; that is, whether
the founders and incorporators constitute the corporation, or
whether the whole membership falls within the body of the
Corporation, or whether some smaller governing body consti-
tutes the corporation, or all of those who may become mem-
bers of a college, for instance, fellows, students and graduates.”
SEC. 502. Stockholders' Rights and Liabilities.— .
To Contract with Corporation.—The stockholders do not sus-
tain the relationship of agency or any other fiduciary relation
to a corporation, and in the absence of insolvency or fraud they
may contract with it precisely as would a third person.” They
do not own the property of the corporation. Though all unite
they can perform no part of the corporation business.
To Dividends.- After dividends are declared they become
the property of the stockholders pro rata, and are held by the
corporation or its officers in trust for the stockholders. In that
situation they may demand it or recover it, and it is subject to
the usual process of execution or garnishment for their debts.”
1 Amte, Secs. 214–222. See Philo-
math College v. Wyatt, 27 Oreg. 890;
26 L. R. A. 68; Lamb v. Cain, 129
Ind. 486; 14 L. R. A. 518; Schleter v.
Reiter, 156 Pa. St. 119; 22 L. R. A.
161; Bear v. Heasley, 98 Mich, 279;
24 L. R. A. 615. *
*The trustees of Dartmouth Col-
lege were the incorporated body.
See State v. Sibley, 25 Minn. 587; 7
Am. Corp. Cas. 624; Regents v. Will-
iams, 9 Gill & J. 365.
3 Cook, Stock and Stockholders,
§§ 11, 649.
4 Id., §§ 541, 542; Parker v. Bethel
Hotel Co., 96 Tenn. 252; 31 L. R. A.
706.
38
594 PRIVATE CORPORATIONS.
[$ 503.
Individual Right to Sue.—In order that there be no failure
of justice, the existence of the stockholder, even as to the affairs
of the corporation, is recognized apart from the residence and
location of the corporation; and it is accordingly held that a
member or shareholder residing in a foreign state may sue the
directors on behalf of the corporation, or sue it and the direct-
ors, or either alone, in the federal courts, notwithstanding the
fact that the main body of the membership would not have
such a privilege, and notwithstanding it may be a case where
the suit must be on behalf of all of the stockholders and of the
corporation, and possibly in the name of the corporation, while
it has not the same privilege." - |
Individual liability of stockholders to third persons upon
contracts with the corporation, or on account of torts for which
it may be held, is always the result of statute. No such lia-
bility exists at common law. It is, however, not uncommon to
provide that stockholders shall be liable to the extent of a
percentage of their holdings or in some fixed amount, or abso-
lutely in certain cases.” - f :
SEC. 503. Consolidation, Combination and Reorganization.—
To the same extent that any person may contract with an-
other, a corporation may combine with another corporation,
or with an individual, subject only to the law against unlawful
combinations and trusts.” The basis of the invalidity of such
contracts or action may rest in general public policy against
forming monopolies, or be invalid because ultra vires the char-
ter, or, as in the last case cited, a violation of the federal con-
stitution against unlawful combinations and trusts.
A corporation has not the power to consolidate or form a part-
nership without the consent of the state and the stockholders.”
If stockholders form a new corporation in another state with
the same name and objects, identical in every respect, the two
corporations are not identical.”
1 Dodge v. Woolsey, 18 How. 331;
Seddon v. V. T. & C. S. Co., 36 Fed.
Pep. 6; Muller v. Dows, 94 U. S. 444;
Hawes v. Oakland, 104 U. S. 452. The
subject of the form of such suits and
the parties belongs with procedure.
2 Hall v. Klinck, 25 S. C. 351; Terry
v. Little, 101 U. S. 217; Sullivan v.
Manufacturing Co., 14 S. C. 499;
Rider v. Fritchey, 49 Ohio St. 295;
Flenniken v. Marshall, 43 S. C. 80;
Merrick v. Van Santvoord, 34 N. Y.
208.
3 People v. Chicago Gas Trust Co.,
130 Ill. 268. See People v. North R. S.
Ref. Co., 121 N.Y. 582; Únited States
v. Joint Traffic Ass'n, 171 U. S. 505.
4 Byrne v. Schuyler El. Mfg. Co., 65.
Conn. 336. *
5 Newport & C. B. Co. v. Wooley,
§ 504.] PRIVATE CORPORATIONS.
595
A reorganization in this method, with a transfer of all assets
of the company, cannot be accomplished without the consent
of all the members (unless by some forms of eminent domain);"
neither can the stockholders escape their liability upon stock
subscriptions, or as stockholders, by selling out their property
to a new corporation organized by them in another state. Such
a transfer has been called a burial in one state for the purpose
of resurrection in another, but for the deeds done in the first
body the old stockholders are liable in this new world.”
SEC. 504. Dissolution.”—The ownership of all the shares of
stock by one person “does not dissolve the corporation; neither
does the sale of all the property.”
The corporation may exist even though for a time it has re-
tired from business" or gone into the hands of a receiver."
Neither the directors nor the whole body of the members can
sell the franchise to be a corporation. This franchise is not
assignable or communicable. It belongs to the particular body
obtaining it, or the assigns of their stock, or their successors,
and only the state can authorize its transfer in any other man-
ner than by a surrender to the state.”
In the absence of a statute there is no method by which the
members, unless they are unanimous, can dissolve a corpora-
tion.” . Except by statute there is no method by which credit-
ors can dissolve a corporation." No One can question the right
of a corporation to exist except the state.”
10 Allen, 448, 455, “clearly cannot
be transferred by any corporate body
of its own will. Such a franchise is
not, in its own nature, transmissible.”.
In Hall v. Sullivan R. R. Co., 21 Law
Rep. 138 (2 Redfield's Am. Ry. Cases,
78 Ky. 523; Drummond Tobacco Co.
v. Randall, 114 Ill. 412.
1 Cook, Stock, etc., § 502.
2 Sprague v. Nat. Bank, 172 Ill. 149.
8 See Cook, Stock, etc., § 628.
4 Parker v. Bethel Hotel Co., 96
Tenn. 352; 31 L. R. A. 706.
5 Id.; Reichwald v. Hotel Co., 106
Ill. 439.
6 Parker v. Bethel Hotel Co., supra.
7 Id.
8 Memphis L. R. Ry. Co. v. Com-
missioners, 112 U. S. 609. The fran-
Chise of becoming and being a corpo-
lation in its nature is incommuni-
Cable by the act of the parties, and
incapable of passing by assignment.
Snell v. Chicago, 133 Ill. 413. “The
franchise to be a corporation,” said
Hoar, J., in Commonwealth v. Smith,
621; 1 Brunner's Collected Cases, 613),
Mr. Justice Curtis said: “The fran-
chise to be a corporation is therefore
not a subject of sale and transfer, un-
less the law, by some positive provis-
ion, has made it. So, and pointed out
the modes in which such sale and
transfer may be effected.”
9 Wheeler v. Pullman T. & S. Co.,
143 Ill. 197.
10 Sprague v. Nat. Bank, 172 Ill.
149. ~.
11 Parker v. Bethel Hotel Co., 96
Tenn. 252. Unless there is a power re-
596 Private corporations. [$ 505.
Dissolution may take place in the following ways: 1. By
the death of all the members. 2. By surrender of charter and
acceptance. 3. By legislative act where the power is reserved.
4. By expiration of charter. 5. By a forfeiture judicially de-
termined."
Procedure.—In many states it is provided by statute that
insolvent corporations may be compelled to go into liquidation
and have their affairs wound up at the suit of a creditor who
has reduced his claim to such tangible form as the statute re-
quires. This has become a well-established method of winding
up corporations. -
Another mode of procedure is by quo warranto or an infor-
mation in the nature of a quo warranto, or a proceeding by
scire facias.
Originally a quo warranto proceeding was only appropriate
where the right to exist and proceed as a corporation, or as a
public officer, was questioned; and where it was sought to for-
feit what was admitted to be an existing charter or organization,
the proceeding was by Scire facias. However, quo warranto
proceedings were adopted as early at least as the attack upon
the charter of London, and in modern times the quo warranto
proceeding may be resorted to when the attack is upon the
organization, or when it is sought to dissolve the corporation
for an abuse of its franchise or a failure to perform its functions.”
SEC. 505. De Facto Corporations.—It sometimes happens
that persons undertake to become incorporated and assume all
the forms and outward semblance of a corporation, in good
faith believing themselves to be so, but on account of some
irregularity or omission their organization has never become
complete, or it may happen that the law under which they
have organized is unconstitutional. -
Such an organization made in good faith, and actually em-
barked upon its career, is known as a de facto corporation, and
persons dealing with it cannot ignore its corporate character
and seek to hold the members liable as partners.”
served in the charter the legislature 1 Folger v. Col. Ins. Co., 99 Mass. 267;
cannot forfeit a private charter. Such Parker v. Bethel Hotel Co., 96 Tenn.
action by the legislature is judicial. 252; People v. N. R. S. Ref. Co., 121
Regents v. Williams, 9 Gill & J. 365. N. Y. 582.
Such an act is spoken of as disfram- 2 Thompson v. People, 23 Wend. 537.
chisement. Com. v. Society, 2 Binn. 3 Am. M. & G. Co. v. Bulkley, 107
441; 4 Am. Dec. 453. Mich. 447. See Cook, Stock, etc., $5,
§ 506.] FIRIVATE CORPORATIONS. 597.
}
SEC. 506. State Corporations.—An anomaly in the law of
corporations is presented in the recognition of a corporation
owned and controlled by a state, the difficulty being the idea.
of a charter granted by a state to itself. It is not difficult to
understand the organization of sub-districts, such as towns and
counties, and investing the locality with an entity; but the
Creation of a business stock company, all of whose stock is
owned and controlled by the state, and investing it with an
artificial personality, is a fiction more difficult to grasp.
That a state may own shares of stock in a private corporation
is clear and presents no difficulty;" or that it may acquire by
purchase all of the shares is a mere deduction from the propo-
sition just made;” but it is stated that a corporation may be
organized, founded, controlled and managed by the state, and
consequently cannot be taxed because it is a state agency.”
Such organizations are not frequent, but their existence is rec-
Ognized, and anomalous results follow. The state takes on an-
other personality.”
231, 239; Gartside Coal Co. v. Max-
well, 22 Fed. Rep. 197. If it were
lawful for the state to create a cor-
poration of the character attempted
under the unconstitutional law, the
Society organized under it will con-
stitute a de facto organization. Coxe
v. State, 144 N. Y. 396; State v. Howe,
1 Mich. 512; Chenango B. Co. v. Paige,
83 N. Y. 178.
1 United States Bank v. Planters’
IBank, 9 Wheat. 907.
*State v. Gibbs, 3 McCord (S. C.),
377; State v. Atkins, 35 Ga. 315; 1
Abb. 22; 10 Fed. Rep. 241.
3 Trustees v. Woodward, 4 Wheat.
618; Nashville v. Bank of Tennessee,
1 Swan, 269. -
4 “It is, we think, a sound principle,
that when a government becomes a
partner in any trading Company, it
divests itself, so far as concerns the
transactions of that company, of its
SOvereign character, and takes that
of a private citizen. Instead of com-
municating to the company its privi-
leges and prerogatives, it descends
to a level with those with whom it
aSSociates itself, and takes the char-
acter which belongs to its associates,
and to the business which is to be
transacted. Thus, many states of
this Union which have an interest in
banks are not suable even in their
own courts; yet they never exempt
the corporation from being sued.
The state of Georgia, by giving to
the bank the capacity to sue and be
Sued, voluntarily strips itself of its
Sovereign character, so far as respects
the transactions of the bank, and
waives all privileges of that charac-
ter. As a member of a corporation,
a government never exercises its
sovereignty. It merely acts as a
corporator, and exercises no other
powers in the management of the af-
fairs of the corporation than are ex-
pressly given by the incorporating
act.” Bank of United States v. Plant-
ers’ Bank, 9 Wheat. 904. See ante,
Sec. 423.
CEIAPTER XXVII.
PERSONAL RIGHTS.
SEC. 507. Private Individuals.-In pursuing the treatment
outlined we have now reached the subject of civil rights, or
rights of a member of the civil community. These are the
same which Blackstone treats as the absolute rights of indi-
viduals, or, as he expresses it, such rights as appertain to them
merely as individuals or single persons (to which, however, he
added, in a state of nature, they would be entitled to either in
or out of society),” and which he also calls their political or civil
rights, and defines as natural liberty restrained by human laws.
In our jurisprudence a different view is taken of civil liberty,
it being the understanding of American jurists that civil liberty
is natural liberty secured by law and augmented by it, and
that government is an instrument to attain that object.”
These private individual rights which pass under the name of
“liberties” were designated by Blackstone as absolute rights, or
such rights as concern or are annexed to the persons of men."
As has heretofore been pointed out and explained, the use
of the word “absolute ’’ in that connection did not conform to
the Vernacular, and Blackstone threw the matter into some con-
fusion by undertaking to transplant a Latin expression used by
civilians into the English law, and in that he followed the Latin
language but did not comply in his translation with the idiom
of the language from which he adopted the expression. He
thereby created an idiom unjustifiable and difficult to under-
stand. - • * * . .
The expression rights of persons or personal rights, which are
such as concern and are annexed to the persons of men, is a part
of our vernacular: It is peculiarly a vernacular idiom. We
may not drop it or ignore the expression. An endeavor has
been made to explain it.”
1 Amte, pp. 116, 121, 146, 150. 4.Ante, pp. 104–8.
2 Amte, pp. 149–50. 5 Amte, pp. 91–95, 105–109. For the
3 Amte, pp. 147–48. - benefit of the student we may be
§§ 508, 509.] PERSONAL RIGHTS. 599
SEC. 508. Personal Rights.-The expression “personal rights
of individuals,” as understood in American jurisprudence, em-
braces all rights connected with the person, as heretofore ex-
plained, civil or political, of individuals, whether they be nat-
ural individuals, or artificial entities, or individuals. They
usually pass under the designation of civil rights.
These artificial entities do not possess all of the rights of a
natural person, nor is their right to exercise them so unlimited
territorially,” but such as they possess do not differ in quality
or sacredness from the same right secured to the individual.
Security from unreasonable seizures and searches, the protec-
tion of just and equal laws, and due process of law belong to
the corporation as well as to the individual.”
SEC. 509. Various Designations of Persons.—Hitherto the per-
sonalities which have been presented, although often borne by
natural individuals, have generally been artificial in character,
either in the aspect of the people as a corporate body, or magis-
trates in their corporate and official capacity, or artificial enti-
ties created by the state and endowed only with private rights.
The subject of individuals, under which is treated their
classes and capacities, is usually treated in English and Amer-
ican jurisprudence under the title natural persons. - -
This designation, while in strict accordance with the vernac-
oilar, would, if regard is had to the meaning of the words in
pardoned for directing the attention
to the definitions of the words idiom.
and vernacular. An idiom is a pecul-
iar or local expression to which is
ascribed a meaning differing from its
natural signification in the language
from which it is derived. Mr. Black-
stone so changed the meaning of both
persona, which he took from the
Latin, and absolute, which he took
from his own vernacular. It has been
said idioms are the genius or peculiar
cast of a language. The vernacular
has a broader though similar mean-
ing. This term also embraces the
idea of locality. It is the language
of the country of one's residence; it
embodies all that which constitutes
one's native speech. Our vernacular
is the English language as it is used
and understood in America. It is
said that a vernacular idiom is sel-
dom acquired by a foreigner, and the
example under discussion justifies
the assertion that a vernacular idiom .
adopted from a foreign language is
seldom understood and is always dif-
ficult to understand.
1 Amte, pp. 104, 108, 109, 118.
* Orient Ins. Co. v. Daggs, 19 Sup.
Ct. Rep. 281; Blake v. McClurg, id.
165.
3 G., C. & S. Fé Ry. Co. v. Ellis, 164
TJ. S. 150; Santa Clara Co. v. S. P.
Ry. Co., 18 Fed. Rep. 385; affirmed,
118 U.S. 394. (The opinion in 18 Fed.
Rep. is the most valuable.) Guthrie,
Eourteenth Amendment, 53; Smyth
v. Ames, 169 U. S. 466.
600 IPERSONAL RIGHTS. [$ 510.
the language from which the titles are taken, involve a sole-
cism.
The expression “natural persons,” however, is in strict ac-
cordance with the English idiom, and a part of the well-settled
American momenclature. By “natural persons” is meant the
different aspects in which individuals appear to the eye of the
law irrespective of any artificial mask, cloak or personality."
The inhabitant, resident, citizen, or dweller within our bor-
ders, all tacitly owe some nature and degree of allegiance, and
are entitled to a reciprocal measure of protection; and it is an
honor to our system of jurisprudence that, irrespective of race,
religion or color, every man is, by our law, accorded full and
unstinted protection in his private rights, simply because he is.
a man; * but a distinction between the rights of men in this.
regard is recognized on account of the relation which they
bear to our territory and our constitution.
SEC. 510. Classes of Men Recognized.— American law, mu-
nicipal and international, recognizes a distinction in some re-
spect or degree between natives, denizens, aliens and citizens.
Natives — Indians.— In Our jurisprudence, to the designation
“native * should be ascribed a somewhat different meaning
from the same word as used in Blackstone's Commentaries; for
thus far, during all of our history, the aboriginal native inhab-
itants of the country have been dwellers among us and have a
recognition in our laws, whereas in English jurisprudence the
native aboriginal inhabitants had long since become extinct,
and the term “native ’’ is there used in the sense of those born
to the allegiance — natural-born subjects; or, as popular phrase
expresses it, “to the manor born.” -
These natives residing among us may, in strict accordance
with the principles of our government, and under the Wise pro-
1 Speaking of a corporation, by the
manipulation of whose stock one
Searles became the sole owner of all of
the capital stock, and against which
corporation quo warranto proceed-
ings to forfeit its franchise were
brought, the court of appeals of New
York said: “And yet it is argued
that the corporation, the legal entity,
has done nothing; that Searles was
guilty, but that the corporate robe
which enveloped him was innocent,
and so he must be left to wear it un-
disturbed.” People v. N. R. S. Ref.
Co., 121 N. Y. 582. In another Case:
the supreme court of the United
States, treating of a municipal Cor-
poration, speak of the city as a legal
personality. Walla Walla v. Walla
Walla Water Co., 19 Sup. Ct. Rep. 81.
2 Chinese Exclusion Case, 130 U. S.
581.
§ 511.] FERSONAL RIGHTS. 601
visions of our law, become citizens,' or they may preserve their
distinct nationality and exercise their rights under their own
codes of law, to which each man has given his voluntary con-
sent.”
SEC. 511. Aliens.—Aliens are those owing paramount alle-
giance to another prince, potentate or nation. Aliens are of
two principal classes: denizens and non-resident aliens. These
non-resident aliens again have differing rights, depending upon
whether they fall within the designation alien friends or alien
enemies.
Aliens who have not attained denization have only such
1 Roff v. Burney, 168 U. S. 218,
They are neither aliens nor citizens
of the United States, but are rather
domestic subjects governed by their
own laws. Id. They may for some
purposes be treated as citizens by the
states. Jackson v. Pintard, 20 John.
184. g -
*The Cherokee nation, for example
has an orderly, comprehensive, writ-
ten constitution occupying thirty
pages, and a clear, well-arranged and
ample code of laws of four hundred
and twenty-six pages, printed, pub-
lished and promulgated under the
authority of the national council.
Other nations are equally well ad-
vanced in civilization. See Cherokee
Nation v. Georgia, 5 Pet. 1; Chero-
Ree Nation v. Southern Kansas Ry.
Co., 135 U. S. 641; Johnson v. McIn-
tosh, 8 Wheat. 543; Roff v. Burney,
168 U. S. 218. “In a case decided by
the supreme court in 1846 it was
held: ‘The native tribes who were
found on the American continent at
the time of its discovery have never
been acknowledged or treated as in-
dependent nations by the European
governments, nor regarded as the
owners of the territories they re-
spectively occupied. On the con-
trary, the whole continent was di-
vided and parceled out and granted
by the governments of Europe as if
it had been vacant and unoccupied
lands, and the Indians continually
held to be and treated as subject to
their dominion and control. The
United States have maintained the
doctrines upon this subject which
had been previously established by
other nations, and insisted upon the
same powers and dominion within
their territory. It is too firmly and
clearly established to admit of dis-
pute that the Indian tribes residing
within the territorial limits of the
TJnited States are subject to their
authority; and where the country
occupied by them is not within the
limits of one of the states, congress.
may by law punish any offense com-
mitted there, no matter whether the
offender be a white man or an In-
dian.” United States v. Rogers, 4.
How. 572. And in another case, in
1855, the court decided that ‘the
Cherokee country may be considered
a territory of the United States.
within the act of 1812, empowering.
any person or persons to whom let-
ters testamentary or of administra-
tion have been, or may hereafter be,
granted by the proper authorities in
any of the United States or the ter-
ritories thereof, to maintain any suit,
etc., in the District of Columbia. In
no respect can it be considered a
foreign state or territory, as it is.
within our jurisdiction and subject
to our laws.’ Mackey v. Coxe, 18.
How. 104.” Quoted in 2 Whart. Int.
L. 532. -
'602
PERSONAL RIGHTS. [Š 511.
rights (aside from the rules of international law) as the laws of
our country accord them. Our citizens, though of kin to aliens,
cannot transmit property to them except by the consent of the
law. Neither can aliens inherit, excepting by the same sanc-
tion; and it is doubtful whether the alien can be the intermedi-
'ary transmitter by descent of property from one of our citizens
to another; that is, where a citizen would inherit from another
citizen, not by direct descent, but by ascending to his alien
ancestor and falling heir to his portion of the inheritance of
another citizen."
A distinction must be observed between taking and trans-
mitting by way of purchase and acquiring and transmitting by
descent; and it is generally held that an alien may purchase
and hold until he is divested by the state by a proceeding
known as “office found,” and if he transmits it in the mean-
time the purchaser obtains a good title” as to every one ew.cept
the state.”
1 The distinction between direct
rand collateral inheritance and me-
diate and immediate descent is ex-
plained by Justice Story. In the
same case he discusses the question
whether a brother could inherit from
a brother where the father was alien.
Levy v. M’Cartee, 6 Pet. 102.
2 Governeur v. Robertson, 11Wheat.
.332. See People v. Conklin, 2 Hill,
167; Tevy v. M’Cartee, 6 Pet. 102.
3 Phillips v. Moore, 100 U. S. 208;
Fairfax v. Hunter, 7 Cranch, 619. In
regard to the disabilities of aliens,
Blackstone seems to have fallen into
an error. He says: “As aliens can-
not inherit, they are also disabled to
hold by purchase.” Vol. 2, p. 249.
Again (at page 347), the language is
used collaterally to the right to pur-
'Chase or transmit by deed, but it has
the appearance that a grant from
the king operates as nothing. Tay-
ing aside this latter apparent error,
which has been explained by John-
son, J. (11 Wheat. 351), the former one
was clearly not the law of England,
and is not the law of this country,
for an alien could both hold and
transmit by purchase; that is, by
grant or deed. Mr. Justice Story
says: “It is clear, by the common
law, that an alien can take lands by
purchase, though not by descent; or,
in other words, he cannot take by
the act of the law, but he may by the
act of the party. This principle has
been settled in the year-books, and
has been uniformly recognized as
sound law from that time. . . . Nor
is there any distinction whether the
purchase be by grant or by devise.
In either case the estate vests in the
alien, . . . not for his own benefit,
but for the benefit of the state, or, in
the language of the ancient law, the
alien has the capacity to take but
not to holds, and they may be seised
into the hands of the sovereign. . . .
But until the lands are so seised, the
alien has complete dominion over
the same. . . . He may convey the
Some to a purchaser. . . . In respect,
to these general rights and disabili-
ties, we do not find that there is any
admitted difference between alien
friends and alien enemies. During
the war the property of alien ene-
§ 512.] PERSONAL RIGHTS. 603
The common-law right or privilege of the alien to take by
purchase is in many, if not most, instances affected by treaties
between this and foreign nations, which permit the taking and
allow the retaining for a reasonable length of time or for a
fixed period. -
It becomes the important and first duty of the lawyer, upon
being consulted, to ascertain whether his client is a citizen, or
whether the right of aliens to hold is involved, and if it is, to
see that disposition is made of the property within the time
and upon the conditions of the treaty obligations."
SEC. 512. Denizens.—Denizens are those having a prior al-
legiance to some foreign nation, prince or potentate, who are
domiciled within our jurisdiction and not naturalized, and who
receive some sort of recognition of rights other than the univer-
sal rights of men to be protected from domestic wrong.” It
depends upon the provisions of our laws whether, and to what
extent, denization may be permitted, and what rights may be
acquired thereby. In short, the residence and rights of deni-
zens, other than those spoken of, may at any time be revoked,
excepting in so far as treaty obligations may control, pre-
serving to them, of course, whatever has been acquired, and
mies is subject to confiscation jure citizen, an exile driven from his
belli, and their civil capacity to sue
is suspended. . . . But as to capacity
to purchase, no case has been cited
in which it has been denied, and in
Attorney-General v. Wheeden and
Shales, Park. Rep. 267, it was ad-
judged that a bequest to an alien
enemy was good, and, after peace,
might be enforced. Indeed, the com-
mon law in these particulars seems
to coincide with the jus gentium.”
Fairfax v. Hunter, 7 Cranch, 619.
1 Scharpf v. Schmidt, 172 Ill., 255.
See D'Graff v. Went, 164 Ill. 485;
Ryan v. Egan, 156 Ill. 122; Jele v.
Lemberger, 163 Ill. 368; Bevans v.
"Went, 155 Ill. 592.
2 “Whenever, by the operation of
iaw of nations, an individual becomes
clothed with our national character,
be he a native-born or naturalized.
early home by political oppression,
or an emigrant enticed from it by
the hopes of a better future for him-
self and his posterity, he can claim.
the protection of this government,
and it may respond to that claim
without being obliged to explain its
conduct to any foreign power; for it
is its duty to make its nationality re-
spected by other nations, and respect-
able in every quarter of the globe.
‘This right to protect persons having
a domicile, though not native-born
or maturalized citizens, rests on the
firm foundation of justice, and the
claim to be protected is earned by
considerations which the protecting
power is not at liberty to disregard.’”
Mr. Marcy, Sec'y of State, in Koszta.
Affair. Quoted in 2 Whart. Int. L.
Dig., p. 484. y
604 PERSONAL RIGHTS. [s 513.
a reasonable period in which to remove and dispose of prop-
perty."
This designation is not often used in our books.
sionally encountered in legislation.
Denizens are a species of aliens not having cast off their al-
legiance, but, because of being permanently domiciled, owe an
allegiance to the country of their denization.”
The denizen has no right to betray the country of his habita-
tion, and he may be punished for treason for so doing.”
SEC. 513. Citizens.”—For a considerable period in the his-
tory of the United States, the question as to what inhabitants
of our domain are citizens was a difficult one.
It was also a question upon which great minds differed as to
who might become citizens. In fact, until the adoption of the
fourteenth amendment, there was some doubt as to both these
Questions.
In this amendment, however, is given a definition of citizen-
ship, and a provision is enacted from which it follows that a
citizen of the United States, taking up his residence within a
state, becomes a citizen thereof, with all its rights and privileges.
The according of privileges by a state does not necessarily
make the one obtaining the privilege a citizen of the United
States. An alien may still be allowed political privileges within
a state without becoming a citizen of the United States;” but
a state is no longer the sole judge of who shall become her
citizens.
A citizen of the United States is a citizen of every state
wherein he may choose to dwell."
It is Occa-
1 United States v. Repentigny, 5
Wall. 211; Chinese Exclusion Case,
130 U. S. 581.
2 State v. Hunt, 2 Hill (S. C.), 1–17;
Carlisle v. United States, 16 Wall.
147. -
32 Wilson's Works, 193; Carlisle v.
United States, supra.
4 See 2 Wilson’s Works, ch. XI.
“‘Generally speaking,” says the great
political authority, Aristotle, ‘a Citi-
Zen is one partaking equally of
power and subordination.” A citizen,
then, -to draw his description as one
of the people, I deem him who acts
a personal or a represented part in
the legislation of his country. He
has other rights, but his legislative I
consider as his characteristic right.
In this view a citizen of the United
States is he who is a citizen of at
least some one state in the Union.”
2 Wilson’s Works, 273.
5 United States v. Cruikshank, 92
TJ. S. 542. -
6 Guthrie’s Fourteenth Amend-
ment, p. 36. But one may be a citi-
. Zen of the United States and not a
§ 3
à
IPERSONAL RIGHTS. 605
513.] It is, however, apparent that not every one born within the
United States thereby becomes a citizen.
Jourteenth Amendment.— Sec. 1. “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. " No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of
the United States; "| nor shall any state deprive any person
of" life, "liberty," or property, without * due process of law;
* nor deny to any person within its jurisdiction the "I equal
protection of the laws.”
It was at an early time held that a citizen of the United
States, residing in any state of the Union, was a citizen of that
state," but this decision was without much discussion, and upon
a point of jurisdiction it is unsettled somewhat by remarks of
the judges in the Dred Scott case.” y
The court then held that the constitution of the United
States did not operate to make one born of negro parents who
were slaves, or whose ancestors had been slaves, citizens, not-
withstanding birth, domicile and natural allegiance.
This decision, rendered in 1856, unlike most decisions, un-
settled the law, and nothing short of a constitutional amend-
ment could replace it upon an intelligible basis.
The qualifying phrase, “and subject to the jurisdiction
thereof,” excludes the children of aliens not permanently domi-
ciled, and all persons subject to any other jurisdiction, such as
children of foreign ambassadors, or Indian nations within our
territory; but unless the condition of the parents is such that
privileges guaranteed in the federal
Constitution. Justice Taney, in dis-
cussing this question, said: “We
must not confuse the rights of citi-
citizen of any state, where he is a
resident of a territory. Presser v.
Illinois, 116 U. S. 252; United States
v. Harris, 106 U. S. 629; Seddons v.
Va. Tr. S. & C. I. Ry., 36 Fed. Rep. 6.
1 Gassies v. Ballou, 6 Pet. 761.
2 The Dred Scott Case left the sub-
ject in this condition: It did not de-
cide that negroes could not become
citizens, but that a negro who had
been a slave, or whose ancestors had
been imported into the country and
sold as slaves, whether emancipated
Or not, could not become a federal
Citizen, and, as such, entitled to the
Zenship which a state may confer
within its own limits and the rights of
citizenship as a member of the Union.
It does not follow because one has
all the rights and privileges of a
citizen of a state that he must be a
citizen of the United States. He may
have all the rights and privileges of
the citizens of a state and yet not be
entitled to the rights and privileges
of a citizen in any other state.”
606 PERSONAL RIGHTS. [$ 514.
it draws the status of the child with it, all persons born within
the United States are citizens thereof." - -
Porfeiture of.-Obviously all the rights of citizenship may
be forfeited, and so also may citizenship itself, either volun-
tarily, as by expatriation,” or involuntarily, by crime punish-
able by banishment; but in the latter case there is room to
argue that he is still a citizen. -
SEC. 514. Naturalization.—Citizenship in the United States
is, as appears from the fourteenth amendment, and as is well
understood by the history of the country, derived not simply
from birth, but by naturalization.
Naturalization is the adoption into the national family and
investing with the full powers of citizenship a person not born
to the citizenship.” This process involves, in most instances,
the revoking of some allegiance by which the individual is
bound at the time of naturalization, and underneath it, and a
fundamental part of the theory, is what is known as the right
of expatriation.
Upon this question several of the personal sovereigns insisted
that allegiance was both natural and conventional; but, what-
ever its origin or form, it was perpetual.”
The insistence of this nation upon the principle that it is the
right of man to change his habitation and change his alle-
giance has prevailed until it may be said to be practically uni-
versal, and under it the subjects of all civilized nations have
exercised and been protected in the right.
The national congress in given exclusive jurisdiction on the
subject of naturalization. It follows that complete citizenship
can be obtained only through birth, the general provisions of
naturalization, or by virtue of being one of the people absorbed
by treaty and thereby deriving the rights of citizenship. Con-
gress has the right to determine who may become citizens.”
1 Elk v. Wilkins, 112 U. S. 94. The
case of United States v. Wong Kim
Ark, 169 U. S. 649, shows the impor-
tance of that middle condition which
the writer has ascribed to denizens.
It was there held that a child born
of Chinese parents who were bona.
jide and permanently domiciled here
was a citizen. -
3 Marriage with an Indian a mem-
ber of a tribe and not a citizen is a
Imode of voluntary change. Roff v.
Burney, 168 U. S. 218. -
8 Boyd v. Thayer, 143 U. S. 162.
4.Ante, sec. 145; 1 Wilson's Works,
278–81,
5 Chinese Exclusion Case, 130 U. S.
581; Boyd v. Thayer, 143 id. 162.
§ 515.] IPERSONAL RIGHTS. 607.
Treaties.—While treaties are recognized as a part of the su-
preme law of the land, the provisions of a treaty, while binding
as to the civil rights obtained under it, cannot bind future leg
islation curtailing the privileges therein contained relating to
the right to become citizens."
SEC. 515. Civil Rights.-In American jurisprudence, the
term civil rights has taken the place of Blackstone's and Hale's
expressions, political or civil liberty. It means the combined
rights of a citizen or individual entitled to the protection of
Our laws. *
They are so termed because they are understood to be the
rights of a member of civil society.” .
Their Various Rºnds.-Under the constitution, individuals.
have what are recognized as political rights, in a sense differ-
ent from the expression of Hale or Blackstone.
Suffrage.—The right of the individual to exercise a portion
of the sovereignty under the provisions of the law is political
rather than private in its nature,” but it is personal, and is em-
braced within the designation of “civil rights,” and is within
the meaning of that general word, “liberty” of the citizen. It
is among the “privileges and immunities” of citizens within
section 2 of article IV of the constitution.* -
Under the American conception the individual suffers a vio-
lation of his liberty when he is deprived of his just and equal
right to participate in political affairs.” - -
To Hold Office.—The right to become a candidate for office is
equally a political right, and, as we pointed out in treating of
1 Chinese Exclusion Case, Supra.
2 There is no distinction between
civil and personal rights. All rights
belong to persons, and all rights are
civil; that is, rights within civil so-
ciety. This word civil is a most
happy substitute for Blackstone's ab-
solute. It is as perfect a designation
as the language can afford. Wilson
quotes approvingly . Burlamaqui's
definition: “Civil liberty is nothing
else but natural liberty, divested of
that part which constituted the in-
dependence of individuals, by the
authority which it confers on sov-
ereigns, attended with a right of in-
sisting upon their making a good
use of their authority, and with a
moral security that this right will
have its effect.” 2 Wilson’s Works,
508. Independence is the condition
of the free state; civil liberty is the
condition of the free man, a citizen
of a free state.
3 Luther v. Borden, 7 How. 1.
4 Blake v. McClung, 19 Sup. Ct. Rep.
165–69; Yick Wo v. Hopkins, 118 U.S.
370,
5 Ashby v. White, Ld. Ray. 938;
Blair v. Ridgley, 41 Mo. 173; State.
v. Cunningham, 81 Wis. 440; Civil
Rights Cases, 109 U. S. 3; Williams.
v. Mississippi, 170 id. 213. The right,
to elect magistrates is an important,
-608 PERSONAL RIGHTS. + [$ 516.
local self-government, is not to be denied the individual or to be
confined to persons of any particular political or religious views."
Jury Service.—Although the duty to sit upon juries is shunned
and avoided as a burden, it is in a sense a part of the political
privileges and liberties of the citizen, generally insisted upon,
no doubt, by the accused for his private interest. It is, prop-
erly speaking, a privilege and a duty, which ought not to be
lightly held or shunned for selfish motives.” - * ***
These political rights of the citizen may be protected directly
by the state. In fact it is one of the great sovereign preroga-
tive functions of the judicial department, at the instance of an
individual or attorney-general, to protect these rights. Their
denial or violation renders insecure all other rights.”
The fourteenth amendment protects the citizen in all classes
of his civil rights, irrespective of his race, color, or previous
condition of servitude. He has a cause of action against any
person interfering with or depriving him of this right, and the
law of no state nor the direction of any magistrate can consti-
tute a justification or defense.
The great cases passing under the name of “The Civillèights
Cases” relate to interferences with rights of this nature.”
SEC. 516. Personal Security.—The Declaration of Independ-
ence affirms that there are certain inalienable rights. Among
these, it is said in sweeping general terms, are life, liberty, and
the pursuit of happiness.
It was not intended by this expression to affirm that these
rights were abstract rights to be enjoyed by the citizen irre-
spective of civil society, or that they were absolute and above
the control of civil society;” but it was no doubt intended to
combat a position then affirmed, that by contracting the tie of
allegiance the individual surrendered a portion of his liberty;
for in the next sentence of that document it is asserted that to
protect these rights governments were instituted."
political right. Purdy v. People, 4 5 Ante (absolute rights).
IHill, 384–91. 6 No one contends that the declara-
1 Cases cited ante, pp. 513, 514. tion was a declaration of independ-
* Gibson v. Mississippi, 162 U. S. 574; ence by individuals; an existing so-
Holden v. Hardy, 169 U. S., at p. 383. ciety had no further use for a gov-
3 State v. Cunningham, 81 Wis. 440; ernment which was found inadequate.
ante, p. 513. They changed it. But Society was not
4 Holden v. Hardy, supra; Gibson disturbed nor did the individual be-
v. Mississippi, Supra. come independent, “‘The inquiry,’
§ 517.] PERSONAL RIGHTS. 609
The expressions, “life, liberty, and the pursuit of happiness,”
are too general and comprehensive to convey a definite under-
standing of specific instances.
These Rights Wot Absolute.—We readily comprehend that
culpable conduct may forfeit life; that liberty is distinguish-
able from license or unrestrained freedom; and that the pursuit
of happiness cannot, in political jurisprudence, be extended to
prodigal wastefulness, and may be qualified by social obliga-
tions and the convenience and rights of others."
Jºqual Rights.- The principle that all men are equal, with
the further fact that no inequalities have been created by soci-
ety, and the declaration that all shall have the equal protec-
tion of the law, and shall be subjected only to equal law, equal
rights, and equal obligations, is the extent of American liberty.”
The purpose of the constitution is to mark out the orbit of
governmental agencies; to protect every individual in his rights;
secure them by just and equal laws and the due administration
thereof, according to some established form and methods of
procedure, and permit him to be interfered with only in accord-
ance with some established system applied to all alike, which
passes under the name of “ due process of law.”
SEC. 517. Life.—Life being a gift of the Creator, it would
seem natural that, if any right might be termed absolute, the
right to live is such; but aside from criminal Offenses by which
life is forfeited, and attempts to do violence which justify a
killing in self-defense, there are situations in which it is justi-
fiable to take the life of the innocent and where it is obligatory
he (Washington, Justice) says, ‘is, whole.” . . . The description, when
what are the privileges and immuni- taken to include others not named,
ties of citizens of the several states? but which are of the same general
. . . What these fundamental character, embraces nearly every
principles are it would be more te- civil right for the establishment and
dious than difficult to enumerate. protection of which Organized gov-
They may all, however, be compre- ermment is instituted. They are, in
hended under the following general the language of Judge Washington,
heads: protection by the govern- those rights which are fundamental.”
ment, with the right to acquire and Slaughter-House Cases, 16Wall. 86–76.
possess property of every kind, and 1 Holden v. Hardy, 169 U. S. 366;
to pursue and obtain happiness and Orient Ins. Co. v. Daggs, 19 Sup. Ct.
safety, subject, nevertheless, to such Rep. 281-84,
restraints as the government may 2 Id.
prescribe for the general good of the
39
610 PERSONAL RIGHTS.
[$ 517.
to die; and this is not in the imperfect sense in which the Only
punishment lays in the conscience, but are duties for the viola-
tion of which the civil law may and does punish. -
The familiar example of two persons, having no superior Ob-
ligation upon either, being placed in a situation where one can-
not live without the death of the other, justifies the killing of
one by the other. This is by the law of nature, and is not en-
forced but merely recognized by the civil law; but under the
contractual relation of carrier and passenger, in extreme peril,
there is a primary obligation upon the seaman to absolutely
surrender his life in order that the passenger may be saved,
not merely by risking it in an endeavor to save the passenger,
but by voluntarily leaping into the sea. -
Again, in the case of the sailor and passenger each clinging
to the same plank, the sailor has not the right to destroy the
passenger.
The seaman is guilty of manslaughter who throws overboard
from an overcrowded life-boat the passenger of his ship; SO
also, doubtless, the helmsman would be guilty of a breach of
his contract, and punishable for resistance to superior officers,
should he refuse to take the helm and stand by until a burning
ship was beached — a rule of law which happily has never re-
quired enforcement in our law. * .
To the last extremity, to death itself, he must protect the
passenger. To the encouragement of this it is that the whole
fabric of the ship, to the last shred, must answer for the sea-
man’s pay.
Sailing is his avocation; risk, exposure, death itself, his vo-
cation.
In the military service, a part of the municipal law, the sol-
dier may not save his life. “So,” says Bacon, “the law im-
poseth upon every subject that he prefer the urgent service of
his prince and country before the safety of his life,” and he
makes a maxim that the duties of life are more than life." The
physician may be placed where the innocent infant or the suf-
1 The most painful example where
these principles were enforced is the
case of the sailor Holmes, who, to
Save a portion of his passengers,
threw Overboard a number of them,
l:eeping only enough of the crew to
manage the life-boat, and succeeded
in saving the remainder of his pas-
sengers. He was indicted and con-
victed of manslaughter. United
States v. Holmes, 1 Wall, Jr. 1; 26.
Fed. Cases, 360.
§ 517.] PERSONAL RIGHTS. 611
fering mother cannot both be saved. He has, in such a case, no
choice: his duty is to save her. -
Killing in Self-defense.—The right to take a guilty life arises
when one is attacked by another, where there is an apparent
intention to kill or do great bodily injury. This is the law of
self-defense." It is a shield, and not a pretext for wanton kill-
ing, or a disproportionate return for a moderate attack show-
ing no evidence of an intention to do great bodily harm.” Still
it is not always a duty to retreat at the attack of the bully, or
to submit to a slight beating rather than destroy an assailant.
He may protect himself, and if his assailant persist to his death
it is justifiable. One need not wait until the danger is certain;
it is sufficient if it is apparent.”
Every man has a duty to protect his household; not merely
his own kin, but all those within his gates, are of his household.”
If they are attacked he may defend them, and if driven to
the necessity may even destroy the assailant. Nay, more, he
may be bound to protect the honor of his household; and it has
been held he has the right to do so to the extent even of killing
the paramour of his wife or the debaucher of his daughter, dis-
covered in the act, and may be excused if the killing, though
not while in the act, is so immediately after discovery that the
natural anger has not had cooling time.” -
Every man's house is his castle. “It may be frail, its roof
may shake, the wind may blow through it, storm may enter,
the rain may enter, but the king of England may not enter;
all his force dare not cross the threshold of the ruined tene-
ment.” " - -
In these eloquent phrases Chatham enforced the principle
that, as against civil process, the outer doors of the humblest
cottage are as moats and battlements. He who persists in en-
tering without proper process of the law does so at his peril; "
but it is not a sanctuary, nor a hiding-place for every man’s
1 People v. Hecker, 109 Cal 451; 30 5Beggs v. State, 29 Ga. 723; Cooley,
L. R. A. 403, note. Torts, 167; Price v. State, 18 Tex.
2 State v. Vaughn, 141 Mo. 514. A. App. 474; 51 Am. Rep. 322, note.
neighborly fight should not degener- 6 Cooley, Const. Lim. 364.
ate into a murderous affray. 7 Cooley, Const. Lim. 373, note. It
8People v. Hecker, Supra. is not to be understood that even
43 Cooley's Blk, 3. trespass justifies a killing.
612 - PERSONAL Rights. [$ 518.
goods. The criminal warrant against the man must be obeyed."
The Officer armed with a writ of replewin or criminal process
may enter.” -
SEC. 518. Personal Liberty.—The subject of personal lib-
erty appears in an entirely different aspect under our jurispru-
dence from that which it presents under the English constitution
as treated by the learned commentator on English law.
This results from various causes.
Fºrst. An entirely different conception of civil rights. No
rights are recognized as absolute.”
Second. An entirely different conception of political rights.
All the members of a community are equal. There is no ab-
Solute power." -
Third. Our dual system of government, on account of which
each individual derives certain rights from national citizen-
ship, and others from his state citizenship, and must look for
protection to one or the other. A.
Jourth. A new conception of religious freedom.
It follows that the treatment of the subject of personal lib-
erty, and in fact much of the law of persons, in the Commentaries
Of Blackstone, is in many respects diametrically opposed to the
principles governing the subject under our law. The value
of this part of Blackstone's Commentaries must be chiefly his-
torical, and only practicable so far as it aids in the interpreta-
tion of certain phrases which still make a part of our constitu-
tional system.
A New Treatment Required.— The above observation applies
not only to Blackstone, but to a certain extent to all of our
presentations antedating the adoption of the post-bellum amend-
ments. By these amendments the constitution of the United
States is essentially remodeled, not merely as to the condition
of the unfortunate bondsmen, but as to the political and civil
rights of all men, of all nations, conditions, colors and classes.”
Without any poetic license it may be said that out of the strug-
I See Mechem, Public Officers, $779. Orient Ins. Co. v. Dagge, 19 Sup. Ct.
*Id.; Cooley, Const. Lim. 364. Rep. 281 (1899).
8 Mr. Justice McKenna says in a 4 Yick Wo v. Hopkins, 118 U. S. 369.
very recent case: “It would be trite 5 Yick Wo v. Hopkins, 118 U. S. 356.
to say that no right is absolute. “Sic See Guthrie, Fourteenth Amend-
wiere two ut alienum non loºdas’ is of ment, p. 107.
universal and pervading obligation.”
§§ 519, 520.] FERSONAL RIGHTS. 613
gle of the civil war came a new birth of freedom, a new Magna
Carta," as it has been termed, and new bulwarks of individual
freedom and self-government.
For the first time is the self-evident political axiom of equal-
ity made to pervade every department of government. Only
now is accomplished the great aim of the constitution as de-
clared in the preamble—to establish justice.
SEC 519. British Liberty.— Civil liberty in its best and high-
est sense is indigenous to British soil—an essential character-
istic of the British people. -
That liberty was in that kingdom for a time subverted is
admitted. It was not destroyed. Each attempt to destroy it
was marked by a new barrier against another encroachment,
and an everlasting monument marking a new acquisition of a
portion of the birthright.
The charters of English liberty were not mere concessions
of new privileges, but declarations of principles based upon
ancient fundamental English law,” and survive in our jurispru-
dence. .
The aim of the architects of the new British constitution
was protection of private right against encroachment of pre-
rogative — the establishment of a fixed orbit of the legislative
body.”
SEC. 520. Liberty Under American Law.—The student of
American institutions lacks the proper Vantage ground who fails
1 Slaughter-House Cases, 16 Wall.
36–125.
2 Sullivan's Law Lect., XVIII; 1
Lytton's Hist., pp. 42, 526. See also
ante, secs. 29, 30, where the distinc-
tion between the object of the Magna
Carta and the Petition of Rights —
“Confirmatio Cartarum”—is pointed
Out.
8 “No lawyer, I suppose, now sup-
ports the doctrine of Blackstone (1
Blk. Com. 164) that the dignity of
the Houses, and their independence,
are in great measure preserved by
keeping their privileges indefinite.”
Stockdale v. Hansard, 9 Adol. & E.
1; 36 E. C. L. 1–121. “The power of
king, lords, and commons is not an
arbitrary power; they are the trust-
€es, not the owners, of estate. The
fee-simple is in us; they cannot alien-
ate, they cannot waste. When we
Say that the legislature is supreme,
we mean that it is the highest power
Rnown to the constitution; that it is
the highest, in comparison with the
other subordinate powers established
by the laws. In this sense the word
‘supreme * is relative, not absolute.
The power of the legislature is lim-
ited, not only by the general rules of
natural justice and the welfare of
the community, but by the forms
and principles of our particular con-
stitution.” Junius Woodfall’s Pref.
VI, VII.
614 IPERSONAL RIGEITS. [$ 520.
to understand that the essential elements of the system were
conceived and framed by men intensely British in their concep-
, tions of right and liberty, and strong in their admiration of
the British constitution, and who, in the beginning of the
struggle which culminated in independence, sought not to
amend it, not to subvert it, not to abandon it, but who claimed
its protection and insisted upon its provisions.
Being compelled to establish a new government, they were
placed in a situation to adopt new principles of constitutional
law and new theories of government consistent with the prin-
ciples of English liberty. -
Political Equality.—Blackstone had faintly suggested that
if there was a place wherein the British constitution might
profitably be amended, it was in a wider diffusion of the prin-
ciples of representation." * *
Jºquality the Keynote of the System.—The constitution of the
United States is based upon the idea of citizenship—that is,
a society composed of equals; best expressed, possibly, by Wil-
son, who adopts Aristotle's meaning of the word “citizen” as
one partaking equally of power and subordination. “He is a
citizen, then — to draw his description as one of the people, -
I deem him, who acts a personal or a represented part in the
legislation of the country. He has other rights, but his legis-
lative I consider his characteristic right.””
The idea is well expressed by Mr. Guthrie: “Our govern-
ment was the first in the history of the world instituted upon
the basis of civil equality and equal law. That jus aequum for
which the Romans longed as embodying true freedom, that
egalité for which the French have striven so hard and so blindly.”
Some invidious aspersions have been made against the na-
tional constitution, as originally adopted, because of its alleged
11 Blk. Com. 172. inequality of men may be with re-
22 Wilson's Works, 273. It is not
to be understood that to be a citizen
one must act a personal part in legis-
lation. In fact, no one is permitted
to do that. All is by representation.
8 Guthrie's Fourteenth Amendment,
p. 106. Mr. Guthrie cites and quotes
1 Wilson's Works, 275 (ed. of 1896):
“But however great the variety and
gard to virtue, talents, taste, and a C-
quirements, there is still one aspect
in which all men in society, previous
to civil government, are equal. With
regard to all, there is an equality in
rights and in obligations; there is
that ‘jus oegwum,’ that equal law, in
which the Romans placed true free-
dom.” -
§ 521.] PERSONAL RIGHTS. 615
violation of the Declaration of Independence; but those who
make them fail to observe that the constitution did not profess
to introduce altogether new principles of private right, but to
Order anew and secure these by the organization of a new gov-
ernment. The new constitution, however, did contain provis-
ions which it was supposed would check the spread of the in-
stitution of slavery. -
It was not, however, until the adoption of the fourteenth
amendment that the principles of the Declaration of Independ-
ence became an accomplished fact in the American constitu-
tion. -
Slavery.—The thirteenth amendment destroyed the existence
of slavery. |
Involuntary Servitude.—That no remnant of inequality might
remain, the same sweeping provision prohibited involuntary
servitude. *
Mew Meaning of Political Liberty.— It is plain that there is
an essential distinction under our American system between
political liberty and personal liberty in the narrower sense;
that is, that the former has relation to the right of participa-
tion in government, while the latter is more essentially private
and personal. ! -
Another distinction is recognized between the private rights
of individuals, which has been heretofore sufficiently explained;
the distinction between the personal right, or the right con-
nected with the person, as personal security, and that right
which is called dominion, ownership or property.
Within the distinction of personal right falls a right much
more difficult for the student to distinguish from property,
namely, the right to acquire, hold and possess things or prop-
erty, as distinguished from the thing or property which may
be obtained by the result of such labor.
This is what Blackstone calls the third absolute right of every
citizen— the right of private property,+ meaning thereby the
abstract right which one has to engage in his occupations, or
to take, hold and possess. -
SEC. 521. Protection to Life, Liberty and Property.— Prior
to the adoption of the fourteenth amendment the citizen stood
in a peculiar position and traced his constitutional guaranty to
liberty to several sources.
616 PERSONAL RIGHTS. [$ 521.
First, the doctrines of the English constitution, sanctioned
and adopted as a part of the American system.
These were evidenced mainly by the British constitutional
documents, Magna Carta, Confirmatio Cartarum, Petition of
Rights, etc., and the rules formulated in judicial decisions con-
struing them; the bills of rights in the state constitutions, and
the inhibitions in the United States constitution against state or
congressional action. - -
It is essential to a proper understanding of these questions.
that these different sources be understood.
The Federal Constitution.— The second clause of the ninth
section of article I of the federal constitution prohibits the sus-
pension of the writ of habeas corpus by federal authority ex-
cepting when, in case of rebellion or invasion, the public safety
may require it."
The third clause of the same section absolutely prohibits the
Tnited States courts from passing a bill of attainder or an ea.
post facto law. -
The seventh section prohibits the granting by the United
States of any title of nobility.
The tenth section prohibits the state from passing any bill
of attainder, ea post facto law, or law impairing the obligation
of contracts. - - -
The first clause of section 2 of article IV guaranties to a cit-
Žeen of a state the privileges and immunities of citizens in any
other state; but the section does not go so far as to guarantee
the citizens of one state the same privilege in any other state
that the citizen of the latter state would have.” The provision
is indefinite, and has never been specifically defined; in fact,
it has been the policy of the court rather to leave the matter un-
defined in order that in a special case justice might be attained.”
The first eight amendments to the federal constitution pro-
tected the citizen against action by the federal government,
but gave him no security against state action.*
1 Ex parte Milligan, 4 Wall. 2; John- is one by Justice Washington in
son v. Jones, 44 Ill. 142. Corfield v. Coryell, 4 Wash. C. C. 371,
2 A corporation is not a citizen quoted in Blake v. McClung, supra.
within this clause. Blake v. McClung, 4 Guthrie, Fourteenth Amendment,
19 Sup. Ct. Rep. 165. p. 3; McElvaine v. Brush, 142 U. S.
3 Id. The most approved definition 155; Ruggles v. Illinois, 108 id. 526.
§ 521.] IPERSONAT, IRIGEITS.
61'ſ
They covered religious freedom; the right to bear arms;
safety against the quartering of soldiers in private houses; per-
Sonal Security against unreasonable seizures and searches and
general warrants; criminal immunity from unjust presentments,
excepting by the course of the common law; protection to life,
liberty and property, except when effected by due process of
law; trial by jury in criminal cases, and in common-law cases
where more than $20 is involved; security against excessive
bail, excessive fines, cruel and unusual punishments.
Security Against the State.—The constitutions of the states
were, until the adoption of the thirteenth amendment, the only
protection of the citizen of the United States, the state, or
citizen of the world at large, from the violation of his person or
property by another individual professing to act under a state
law, excepting the provisions of the federal statute hereinafter
named. t -
The law in reference to false imprisonment, libel and slander,
trespass and other civil suits, which is hereafter fully treated,
explains the nature of these violations and the remedies for
their protection. - .
It will be seen that the federal constitution granted no con-
trol over state action relating directly to personal security,”
excepting clause 10 of section 9 of article I, prohibiting any
state from passing bills of attainder, ea post facto laws, or laws.
impairing the obligations of contracts.
The thirteenth, fourteenth and fifteenth amendments of the
national constitution, however, rounded out and made complete
the protection of the private individual, be he alien, denizen or
corporation, from the deprivation of liberty, or denial of right.
under authority of law.
The thirteenth amendment abolishes once and for all slavery,
and it strikes out any shift or device subjecting any man suº
juris to the control of another person, excepting by his own
contract, providing that involuntary servitude shall not exist.
anywhere in the United States excepting for crime.
1 The present constitution does not
extend to protecting against individ-
ual wrongs not professed to be right-
fully performed under state law.
Civil Right Cases, 109 U. S. 3.
? By this the writer intends that
the interstate commerce Clause,
which protects the citizen in his
right to interstate commerce, is
public in its nature rather than an
act relating to personal liberty.
618 PERSONAL RIGHTS. [$ 522.
The fourteenth amendment contains the fullness of equality
and protection in favor of the private rights of the individual.
First, it defines citizenship.
Second, it provides the same immunity against the state
which formerly existed against the United States, and denies
the right of any state to enforce or make any law which should
abridge the privileges or immunities of the citizens of the United
States. . -
Third, it provides that no state shall deprive any person of
life, liberty or property without due process of law.
Fourth, it provides that no state may deny to any person
within its jurisdiction equal protection of the laws.
The fifteenth amendment protects the politicalliberty of the
citizen in a particular direction only; that is, that the right of
suffrage shall not be denied or abridged by either the United
States or the state on account of race, color or previous condi-
tion of servitude." - T
SEC. 522. State and Federal Protection.—It will be apparent
to any one who carefully studies our constitution that there is
a difference between the rights, privileges and immunities of
citizens granted under the federal constitution as originally
framed and the rights protected by these new provisions, and
that the latter are much broader and more comprehensive than
the former.
It has never been determined just what specific privileges are
embraced within section 2 of article IV of the constitution. Mr.
Guthrie observes that it must surely be those privileges and im-
munities which attach to citizens of the United States as such,
and not as citizens of any particular state or territory embraced
within the Union. He says it must be those privileges and
1 Summary of Provisions—Persons
and Citizens.— Corporations are Con-
sidered citizens only within the stat-
ute relating to jurisdiction of courts.
They are not within article IV, sec-
tion 2, of the constitution. They are
not citizens within the fourteenth
amendment. They are persons with-
in the fourteenth amendment. The
‘state is not compelled to afford to all
persons equal protection of the law,
but only to those within its jurisdic-
tion. -
Privileges and immunities; protec-
tion by government; right to pursue
calling and acquire property; right
to ingress and egress; writ of habeas
corpus; right to sue in courts; equal
taxation; right of Suffrage. The late
case of Blake v. McClung, 19 Sup. Ct.
Rep. 165, affirms all of the above.
See Cummings v. Missouri, 4 Wall.
277; Smyth v. Ames, 169 U. S. 466.
§ 522.] PERSONAL RIGHTS. 619
immunities which belong to them under the government es-
tablished by the constitution of the United States, and regu-
lated by the laws of congress, the privileges and immunities
that James Wilson would have characterized as federal liberty.
Among these privileges and immunities are the fundamental
rights of the individual which are mentioned in the first eight
amendments to the constitution." -
Without acquiescing fully in the idea that formerly the privi-
leges and immunities were such only as derive their source or
trace their title through the federal constitution, it is perfectly
clear that there are several things not protected by this clause.
Among them may be mentioned the following:
First, the rights of a resident not a citizen of one state were
not secure against unjust discrimination in another state. -
Second, a citizen of a given state was not entitled to all of
the privileges he may have enjoyed in the state of his first resi-
dence should he remove into a new state.
Third, the privileges of citizenship itself were derived from
the states, although the method of naturalization was regulated
by the general government.
Fourth, it could apply only to natural persons; for, in the
sense involved, artificial persons are not intended.
The new provisions have been frequently spoken of as a new
Magna Carta, and they approach very close to it.
The last clause of chapter 39 of King John's charter, and
chapter 29 of King Henry, is, “We will sell to no man, we will
not deny or defer to any man, either justice or right” (rectum,
vel justitiam).”
It is not allowable to suppose that the two words above itali-
cised mean the same, and so on examination it will be found that
justice and right had well-established meanings. The word jus-
1 Guthrie's Fourteenth Amendment,
p. 58.
2 Chapter 29 of Magna Carta, so fre-
quently alluded to in discussions re-
lating to this subject, is as follows:
The last clause in Latin is, Nulli ven-
demus, nulli megabimus, aut differ-
emºus rectum vel justitiam. The clause
is sometimes translated, “to none will
we sell, to none will we deny ” (Taze-
well's Longmead's Const. Hist. 126),
but Creasy translates it “no man.”
The forty-first chapter of John's char-
ter made provision for all merchants,
aliensas well as subjects. The twenty-
ninth chapter of Henry is the same
as the thirty-ninth and fortieth of
John. The great charter is that of
John (1215).
620 IPERSONAL RIGHTS. [$$ 523, 524.
tice meant, at the time of Magna Carta, more nearly what we
would call a right, or the right; while the word rectum more
nearly the means afforded by the law to enforce the right, or
what we would call the remedy; and this clause in the great
charter enforces a remedy for every wrong, or guarantees due
process of law.
For every right there must be a remedy, and so it is a maxim
of the English law, Ubi jus, ibi remedium.
SEC. 523. Equal Protection of Law.—The phraseology of the
last clause of section 1 of the fourteenth amendment goes be-
yond the Magna Carta, or any similar provision ever before
adopted in any state of the Union.
It provides that no state shall deny to any person within its
jurisdiction the equal protection of the laws. -
The Declaration of Independence recognizes the equality of
men before the law. The federal constitution had originally
prohibited the nation and the states from conferring any title
of nobility, but this did not prohibit discriminations, the giving
of special privileges or class legislation." *
Distinctions of rank and honor are held to be not only jus-
tifiable but necessary, and were an established part of the Eng-
lish constitution,” and these distinctions of rank and honor had
their corresponding privileges.” {3
The constitution now requires that all persons and all classes
of persons shall be subject, in the same situation and condition,
to the same law, with no less rights or greater burdens than
are imposed upon any others."
SEC. 524. The Character of the Constitution Changed.—We
have heretofore pointed out that the great national objects
were by the Original constitution committed to the national
1 Art. I, sec. 9, clause 7; sec. 10,
clause 1. See 1 Wilson's Works, p. 393.
21 Blk. Com. 153. See observation
on this point, 1 Wilson's Works, p. 392.
3 Tables of Precedence, 1 Cooley’s
Blk. 405.
4 Yick Wo v. Hopkins, 118 U. S. 356;
Magoun. v. Illinois T. & S. Bank, 170
id. 283. A tax imposed upon em-
ployees of a sum per diem for every
resident alien employed is a denial of
equal protection of law and contrary
to the fourteenth amendment. Ju-
niata Line Co. v. Fogley (Pa. St.), 42
L. R. A. 442. An ordinance or state
law restricting a public contract to
members of a union would come
within the same inhibition. See Ad-
ams v. Breman (Ill.), 52 N. E. Rep. 314.
§ 525.] PERSONAL RIGHTS. 621.
government, while matters of local and private concern were
left to the states for regulation and protection. &
This new constitution changed this principle of partition, and
extended the protecting arm of the constitution to every person,
natural or artificial, and to every subject of private right."
Congress may by legislation secure the citizen in these rights
and provide punishment for their violation, and this changes
the power theretofore possessed from the mere negative author-
ity of the courts to annul, to the positive power of congress to
define and declare, the courts to expound, and the executive to
enforce.” - -
SEC. 525. Unreasonable Seizure and Search.- Among the an-
noyances and grievances to which the people under some forms
of government are subjected is the liability of having their
houses or effects searched by the officers of the government,
and at the time of the American Revolution general warrants
were not uncommon authorizing the officers to search sus-
pected persons and places without the designation of any par-
ticular person, place or crime. &
The subject of writs of assistance and general search-war-
rants is of little importance at the present day, for the reason
that no extravagant exercise of any such power need now be
feared.” - º
Unfounded claims of right occasionally occur, but a claim is
seldom made to search undesignated places and arbitrarily de-
tain suspected individuals. -
. The fact that liberty in this respect is so thoroughly estab-
lished renders it more difficult to define the limits of a just
exercise of the acknowledged powers of seizure and search.
It is now well established that a search-warrant must be cer-
tain and definite as to the person and property to be searched
and the thing to be sought for.” -
Seizure and search mean something different from and more
than mere personal and bodily taking.
I Yick Wo v. Hopkins, 118 U. S. 370.
2 Civil Rights Cases, 109 U. S. 3;
Ah Kow v. Nunan, 5 Sawy. 552. See
Guthrie, Fourteenth Amendment,
p. 107.
3 The subject is historically treated
in all of the works devoted exclu-
sively to the subject of constitutional
law. A reading of the case of Boyd
v. United States, 116 U. S. 616, will
furnish ample material for historical
investigation. -
4 Cooley, El. Torts, 107–8; Grumon v.
Raymond, 1 Conn, 40; 6 Am. Dec. 200.
622 JPERSONAL RIGHTS. [$ 525.
The invasion of privacy by unjustly forcing or allowing a
witness to testify in relation to matters of his own private con-
cern is included, and to unjustly declare that which to-day is
a subject of property and traffic to be contraband is to seize
the property, although the subject of property remains phys-
ically untouched.”
A person called upon to justify his interference with the per-
son or property of another, if he admits the fact, is bound to
show, by way of justification, some positive law which justified
or excused him, and the law must be submitted to the judges
of the courts, who shall determine the right and reasonable-
ness of the action; * and it is not for the courts to liberally ex-
pound such statutes in order to include cases not clearly within
their provisions.”
The only lawful mode of making a search upon the premises
of any one is under the command of a search-warrant.”
The prosecutor, as an administrative officer of the law, has
no right to seize or search the property of third persons not
accused of crime.”
It is allowable to search the persons of individuals arrested
1 Potter v. Beal, 49 Fed. Rep. 793.
The complainant in this case brought
a bill in equity alleging that a trunk
then in the vaults of a bank, which
was in the hands of a receiver, Con-
tained his private papers; that the
receiver refused to surrender the
same, and was about to be sum-
moned before the United States
grand jury with the papers to inves-
tigate a Crime against the complain-
ant. It was held under the fourth
and fifth amendments to the United
States constitution that the receiver
could not give evidence as to the
contents of the trunk, nor could a
public investigation be had, because
such an investigation would consti-
tute an unreasonable seizure and
search.
2 Wynehamer v. People, 13 N. Y.
378. This is one of the most widely
cited and universally approved cases.
It should be carefully read by the
student. Scott v. Donald, 165 U. S.
58.
8 Boyd v. United States, 116 U. S.
616. The seizure or compulsory pro-
duction of one's private papers to be
used against him is equivalent to
compelling him to be a witness in
his own behalf, within the fifth
amendment. Very frequently the
provisions of the fourth and fifth
amendments coalesce in a case.
When the object of compelling a
man to be a witness is merely to dis-
close the contents of papers, it is a
seizure and search within the fourth
amendment, as well as a violation of
the fifth. Seizure and search of one’s
private papers is totally different
from search and seizure of stolen
goods, dutiable articles, and the like.
Boyd v. United States, 116 U. S. 616.
4 Newbury v. Carpenter, 107 Mich.
567.
5 Cooley on Torts, 295.
6Newbury v. Carpenter, supra,
§ 526.] PERSONAL RIGHTs. 623
for the commission of crimes, and to take from him any weapon
or evidences of a crime."
SEC. 526. Uniform Laws Not Required.—It is not the inten-
tion of the fourteenth amendment to have the effect of com-
pelling the various states to establish the same system of law,
and in this manner provide uniform laws.” •
Neither is it within the contemplation of the constitution
that the law-making power of the states shall be shorn of its
reasonable discretion in providing the classification of localities
and imposing a different system of local self-government in
different parts of the state.”
It is not every apparent diversity of law between different
localities or different persons which will enable the national
authorities to interfere, or the national courts to adjudge the
state law invalid. The states necessarily have a wide discre.
tion; but if, under the guise of proper regulation, unjust dis-
crimination and unequal laws are imposed upon the citizens of
the state, or distinctions between non-resident and resident
citizens of the United States are made, it is within the power of
...the federal judiciary to annul the law.
Ultimately the courts must judge of the reasonableness of
such provisions.” *
The Requirement of Egual Protection of the Zaw.—The ex-
pression is sometimes used, “the same law for the same class
of persons; ” but it is to be understood that natural persons can-
not be classified in such a manner as to affect fundamental
rights." The business or calling in which the person is engaged
may be the occasion for classification, but that is not classifica-
tion of persons, but the classification of objects and the regula-
tion of business, occupation or calling.’ So the relation which
One bears to another person or thing may be the basis of differ-
1 Bank v. McLeod, 65 Iowa, 655;
Langdon v. People, 133 Ill. 382; New-
bury v. Carpenter, supra.
2 Blake v. McClung, 19 Sup. Ct. Rep.
168; Holden v. Hardy, 169 U. S. 366.
3 Holden v. Hardy, 169 U. S. 366;
Missouri v. Lewis, 101 id. 22.
4Id. A provision of the Maryland
Constitution authorizing a court of
Baltimore to provide rules, not au-
thorized in any other part of the
state, does not conflict with the four-
teenth amendment. Chappell C. & T.
Co. v. Sulphur M. Co., 19 Sup. Ct. Rep.
268. **
5 Williams v. Mississippi, 170 U. S.
213; Smyth v. Ames, 169 id. 466; Yick
Wo v. Hopkins, 118 id. 356.
6 Williams v. Mississippi, 170 U. S.
213.
7 Orient Ins. Co. v. Daggs, 19 Sup.
Ct. Rep. 281; Revell v. Annapolis,
81 Md. 1.
624. PERSONAL RIGHT3.
[$ 527.
ent rights." So also the natural or legal disabilities of individ-
uals may be recognized—regulated. -
SEC. 527. Discrimination Against Women.—What is here
said is intended from the standpoint of sex simply, not the con-
dition of married women, which will be spoken of hereafter.
That women are citizens is universally admitted. It is com-
monly asserted that suffrage is a franchise or a privilege, and
the decisions of the courts go to that extent whenever the
question has been specifically involved.” .
On the other hand, the oft-repeated and approved definition
of what are the privileges and immunities of citizens, given by
Mr. Justice Washington, includes the enjoyment of the elective
franchise according to the laws of the land.”
In England suffrage was an incident of a freehold interest
in land, and under some circumstances a person might vote in
the several precincts where he held land. -
In no country has the discrimination against the political
rights of women been more unjustifiable in policy, and so con-
trary to the principles of the form of government, as in the
United States.” In no country has the law as to the private
rights of women been more favorable.
We have seen that equality of right requires a voice in the
choice of magistrates, and the right to a voice in the choice of
representatives in the assemblies of the nation and state.
Under the Roman system every person was either the head
of a family or under the dominion and control of a paterfam-
£/?as. .
It was in perfect accord with the principles of their system
that the pater familias should represent every member of his
family, and there may be several reasons urged why a married
woman might, in accordance with the principles of representa-
tion and equality, be denied the franchise, which would not
apply to an unmarried woman.”
1 Magoun v. Illinois T. & S. Bank,
170 U. S. 283.
2 Minor v. Happersett, 21 Wall. 129.
3 Corfield v. Coryell, 4 Wash. 380:
Blake v. McClung, 19 Sup. Ct. Rep.
165. -
4 “The correct theory and the true
principles of liberty require that
every citizen whose circumstances
..e.
do not render him necessarily de-
pendent on the will of another should
possess a vote in electing those by
whose conduct his property, his rep-
utation, his liberty and his life may
be most materially affected.” 2 Wil-
Son’s Works, 16.
5 The late John Randolph Tucker,
in an address, after reviewing, the
§ 527.] PERSONAL RIGHTS.
625
Under the English system, the principle of representation, as
has been mentioned, was attached to the freehold as an inci-
dent to the tenure, and this tenure depended upon the personal
bond between the tenant, or inferior, and the superior lord,
baron or prince, so that the principle of representation was
never lost sight of, and its reciprocal bond never broken.
In America, however, the unmarried female has nothing
more tangible at best than the virtual representation which her
ancestors scoffed at, which Mansfield undertook to maintain,
and which Burke and Pitt ridiculed, and the British yeomanry,
English and American, repudiated as inapplicable to British in-
stitutions.
The policy of our law has been to extend the principle of
representation as widely as the circumstances will admit. The
law is, however, well settled that it rests entirely with the leg-
islative power of the people, or the general assembly, under
constitutional permission, to determine to whom and upon what
conditions the suffrage shall be extended, and these views have
been too long acquiesced in to be open to an argument based
upon right."
It is quite obvious that the privilege of citizenship could be
enlarged to great advantage to the general public, and that the
public needs the suffrage of the intelligent native-born woman
quite as much as they need the privilege. It would not be
required that the privilege should be further extended than to
our native-born female citizens.”
Roman law, said: “I come now to
the common-law system, which was
‘established with a full knowledge of
the Roman law, and with important
modifications growing out of the
feudal polity in respect to lands.
The headship of the baron was a
principle of this system, as it had
been of the Roman law, and even of
the community system, as we have
seen. But his supremacy was em-
phasized by making the wife abide
under the shadow of his wing. She
was feme covert. He was her pro-
tector, bound to her support, and,
even when he neglected it, liable for
all necessaries furnished to her. Her
contractual capacity was denied, for
her Security, her separateness, as a
person, was ignored quoad the world.”
Virginia Bar Ass’n Rep., 1891, p. 198.
1 United States v. Anthony (Susan
B.), 11 Blatch. 200. In Minor v. Hap-
persett, 21 Wall, 162, the whole sub-
ject is carefully considered and the
above results declared.
2 It is not within the province of the
state legislature, in the absence of
constitutional grant, to extend wrvi-
'versal suffrage to all matters. Coffin
v. Thompson, 97 Mich. 188; Scott v.
Barry, 52 Kan. 1; 20 L. R. A. 699. But
as to local matters which the legis-
lature may delegate, it may permit
40
626 PERSONAL RIGHTS. [Š 527
The tendency is in that direction. The franchise is gradu-
ally being given, and it is to be hoped that the spirit of equality
will be extended until every person who owes an allegiance and
is under obligation to pay taxes shall have a voice in the choice
of magistrates and representatives.
Jºmployment, Contracts and Professions.—Different consid-
erations control these subjects. The right to contract, as such,
is clearly a right of citizenship; but in the sound exercise of
the police power, all persons, male and female, may be pro-
tected against their own indiscretion; and so laws applying only
to females are proper, the classification being a natural one.
As to professions which are the proper subject of license and
regulation, it cannot be said that a law which excludes women.
from their exercise is necessarily void."
Happily the question may now be said to be settled in favor
of admitting women to practice the professions on an equality
with males.”
female suffrage. Brown v. Phillips,
71 Wis. 239.
1 Bradwell v. State of Illinois, 16
Wall. 130; Ex parte Hall, 50 Conn.
131; 47 Am. Rep. 625; Ex parte Rob-
inson, 131 Mass. 376.
2 Ex parte Goodell, 48 Wis. 693;
Foltz v. Hodge, 54 Cal. 28.
The practice of law by women is
no longer in the experimental stage,
but has reached the point of a suc-
cessful demonstration. Most of the
large cities have a number of women
lawyers. In one of the rigid exami-
nations introduced by the new rules
in Illinois, the Only applicant success-
fully passing the examination was a
woman. Perhaps no better field ex-
ists for a test of the feasibility and
desirability of allowing women to
practice law than is afforded in Chi-
Cago.
The very honorable career of Mrs.
Myra Bradwell must be an inspira-
tion to her sex, and every intelligent
lawyer freely admits that by the es-
tablishment of the first successful
legal newspaper in the city she ac-
complished as much as any other
person in the interests of the profes-
sion.
Among the living lawyers of Chi-
cago, Mrs. Mary A. Ahrens stands at:
the head of her profession, is success-
ful in every sense of the word, and
exercises her functions with such
dignity and ability that she daily re-
ceives the same courtesy and atten-
tive hearing that is accorded any
other member of the bar. She and
the other members of the bar, of her
sex, have demonstrated that no diffi-
culty need be experienced on account.
of their presence in the court-room.
Mrs. Catherine Waugh McCullough.
is a successful and useful member of
the profession.
Miss Cora B. Hirtzell fills Satisfac-
torily and ably the office of assistant
Corporation counsel, performing her
duties and functions with ability
equal to any person of her years and
experience.
Mary M. Bartelme holds the posi-
tion of public guardian in the pro-
bate court of Cook county, perform-
§ 528.] PERSONAL RIGHTS. 627
SEC. 528. Discriminations on Account of Race or Color.—
There is nothing in the constitution of the United States or
the recent amendments which denies to the states the right to
recognize the natural distinctions between the white and the
colored races." -
These constitutional provisions do, however, absolutely pro-
hibit any unequal discrimination as to rights, privileges or ac-
commodations in public places, whether they be railway trains,
depots, schools, churches or theaters. The accommodations
need not be the same, but they must be equal.”
It is allowable to provide separate accommodations for the
white and the colored citizen, and require that these shall be
used by the different races respectively; but there must be no
perceptible or substantial inequality in the provisions for one
as against the other.”
Nothing tends so much to remove local prejudices as to thor-
oughly understand the real question, situation and distinctions,
and perhaps some slight service may be done by directing at-
tention to cases arising in northern states at an early day."
ing her duties with fidelity and with
ability above criticism.
The United States furnishes many
more examples equally as creditable.
I Heard v. Railway, 1 Int. St. Com.
Rep. 719.
2 Smith v. Chamberlain, 38 S. C.
529, 19 L. R. A. 710; Ex parte Plessy,
45 La. Ann. 80. -
3 Id.; Separate Schools Case (Chris-
man v. Mayor (Miss.), 12 S. Rep. 458).
A railroad company which under-
takes to provide such distinct accom-
modations is liable to a person of color
insulted and annoyed by an intrud-
ing white man. Quinn v. L. & N.
Ry. Co., 98 Ky. 231.
4 In Roberts v. Boston, 5 Cush. 198,
a case arising in 1849, Shaw, C. J.,
said: “Conceding, therefore, in the
fullest manner, that colored persons,
the descendants of Africans, are en-
titled by law to equal rights, consti-
tutional and political, civil and social,
the question then arises whether the
regulation in question, which pro-
vides separate schools for colored
children, is a violation of any of these
rights.” And the court held that it
was not, saying, in conclusion: “It
is urged that this maintenance of
separate Schools tends to deepen and
perpetuate the odious distinction of
Caste, founded in a deep-rooted preju-
dice in public opinion. This preju-
dice, if it exists, is not created by
law and cannot be changed by law.
Whether this distinction and preju-
dice existing in the opinions and feel-
ings of the community would not be
as effectually fostered by compelling
colored and white children to associ-
ate together may well be doubted.”
In another case arising before the
fourteenth amendment, a Pennsyl-
vania court says: “The right to sep-
arate passengers being clear, in
proper cases, and it being the subject
of sound regulation, the question re-
maining to be considered is whether
there is such a difference between
the white and the black races in this
state, resulting from nature, law, and
custom, as makes it a reasonable
628 PERSONAL RIGHTS.
[$ 529.
is:
The law relating to interstate commerce, however, restricts
the rights of the states, or of the persons conducting the busi-
ness of interstate commerce or carriage; and as to interstate
passengers, no local rules can be made and enforced."
In New York substantial discriminations were made between
colored and white citizens as to the right of suffrage up to the
year 1874.”
SEC. 529. Religious Liberty.— Religious liberty is sometimes
spoken of as the fourth absolute right of citizens of the United
States. The subject is not well understood. Like all other
rights, it is essentially relative. -
It means more than religious toleration, which might exist
though the government support an established church.
The constitution of the United States is not the source of
religious freedom. It merely, from the necessity of the case,
recognized that the only safe course is to prohibit congress
from making any law respecting the establishment of religion.
It does not make any provision upon that subject for the states.”
It was originally left to the regulation of the states. The
Ordinance of 1787 of the Northwest Territory contained an
important provision which has been the basis of similar decla-
rations in many of the state constitutions.”
By an established church is
meant one which is recognized
ground of separation.” The court
then proceeds to discuss these differ-
ences, taking care to say: “To assert
separateness is not to declare inferi-
ority in either. It is simply to say
that, following the order of Divine
Providence, human authority ought
not to compel these widely-separated
races to intermix.” Concluding, the
court said: “Law and custom hav-
ing sanctioned a separation of the
races, it is not the province of the
judiciary to legislate it away. . . .
IFollowing these guides, we are com:
pelled to declare that at the time of
the alleged injury there was that
natural, legal and customary differ-
ence between the white and black
races in this state which made their
separation, as passengers in a public
conveyance, the subject of a sound
regulation to Secure order, promote
comfort, preserve the peace, and
maintain the rights both of the car-
riers and passengers.” Railroad Co.
v. Miles, 55 Pa. St. 209, quoted in Ex
parte Plessy, 45 La. Ann. 80.
Since these amendments were
adopted, the supreme court of Illi-
nois has recognized that separate ac-
commodations may be provided and
their use enforced. C. & N. W. Ry.
Co. v. Williams, 55 Ill. 187; 8 Am.
Rep. 641.
I L., N. O. & T. Ry. Co. v. State, 133
U. S. 587; Hall v. De Cuir, 95 id. 485;
Carrey v. Spencer, 36 N. Y. Sup. 886.
2 People v. Rice, 135 N. Y. 492. See
note, 41 Am. Dec. 645.
3 Slaughter-House Cases, 16 Wall.
36; Story on Const., § 1879.
4 Bloom. v. Richard, 2 Ohio St. 390;
State v. Board, 76 Wis. 177; Pfeiffer
v. Board (Mich.), 77 N. W. Rep. 250.
§ 529.] PERSONAL RIGHTS. 629.
as having the favor of the government and one which the gov-
ernment supports, and thereby indirectly compels all of the
people to contribute to its support.
By the disestablishment which has taken place in the United
States, the public—that is, the government — does not pretend
to support any particular religion or denomination.
The constitution recognizes religion and the existence of many
peculiar denominations and sects.
The prevailing religion of the Saxon people is made the basis
of all the solemn promises of allegiance and official faithfulness,
the sanctity of the oath in judicial proceedings, and an addi-
tional, though not essential, sanction to the marriage tie."
In the nature of the case, divergent views upon religion are
constantly coming in conflict.
It speaks well, however, for the advance of civilization and
the wisdom of the idea of disestablishment that these collisions
are not more frequent and violent.
It speaks well also for the spirit and independence which re-
sents the slightest intrusion or the smallest encroachment upon
the constitutional provision that no man shall be compelled to
support any religion against his will, that the courts do not allow,
upon any pretext, compulsory contribution towards any relig-
ious object.”
Teligious views, however, are not admitted as a defense
against prosecution for acts which are declared to be contrary
to the policy of the law, and are made punishable by the crim-
inal laws, or a recognition of which is essential to the admin-
istration of justice.”
The most frequent aspect in which the case is now presented
is the reading of the Bible in the public schools, or the attempts
more or less positive to introduce the teaching of the Christian
religion in the public schools.
The courts are quite in harmony on the doctrine that the
public school cannot in any sense be a medium for teaching
-1 Reynolds v. United States, 98 U.S. the cases of State v. Board, 76 Wis,
148; Miles v. United States, 103 id. 177, and Pfeiffer v. Board, 77 N. W.
304. - Rep. (Mich., 1898), 250.
2 The divergent views as to what 3 Miles v. United States, 103 U. S.
use of the Bible in schools does and 306; Reynolds v. United States, 98
what does not violate the principle id. 145; Mormon Church v. United
are well presented on either side by States, 136 id. 1. -
630
[$ 529.
IPERSONAL RIGHTS.
religious sentiments, but they
are not in harmony upon the
question whether the mere reading of the Bible, without com-
ment, merely for the purpose of reading the Scriptures and
paying respect to the peculiar religion, is a violation of religious
liberty."
It would probably be safe to
would hold that an explanation,
affirm that no American court
incidentally given in the course
of teaching history or literature, of the tenets of the Christian
religion, Mohammedanism, Mormonism, or any other religion,
would be a violation of the law, and something must be left to
the discretion of those who are
conducting the schools and to
the courts in the matter; and the intention with which an act is
done, and the extent to which it is carried, may be decisive of
the matter.
Protection to Enjoyment of Religion.—The jurisprudence of
the United States goes somewhat further than mere passive
toleration and non-interference.
the free enjoyment of his rights,
It guaranties to every citizen
and among these, religious wor-
ship; and the law recognizes that this right is not complete if a
portion of the community may disturb another portion in their
devotion or worship, or if an individual or sect may be reviled
with impunity by any other person; hence the law in reference
to disturbance of religious worship, blasphemy and Sunday
labor in the vicinity of places of religious worship, etc.”
On the other hand, the violent and noisy assemblage of per-
sons in public places may be prohibited or restrained in order
that the public may enjoy its equal right to quiet and
of such public places.”
the use
NOTE.- “Due process of law'” and
“E’rocedure.”
1. Cf. cases from Wisconsin and
Michigan, cited above.
2 Ruggles v. Johnson, 8 Johns. 290.
It is very frequently said that Christi-
anity is a part of the law of England,
and so to a certain extent it is, and
likewise recognized as a substratum
or under-current of public opinion in
American law; but it is not so in any
sense that Christianity is thrust upon
any person. On this general subject
the Curious may examine, besides the
“Trial by jury” will be treated with
cases cited in this section, Rex v.
Carlisle, 3 B. & A. 161; 5 E. C. L. R.
101; Rex v. Waddington, 1 B. & C.
26; Cowen v. Milburn, 2 Law R. Ex.
(1867), 230; Reg. v. Ramsay & Foote,
48 Law Times (N. S.), 733 (1883); Up-
degraph v. Com., 11 S. & R. 394;
Girard Will Case, 2 How. (U. S.) 198.
8 Thé Salvation Army has abused
others and been subject of abuse in
this respect. See Frazier's Case, 63
Mich. 396; Elliott's Mun. Corp., § 238.
CHAPTER XXVIII.
DOMESTIC RELATIONS.
SEC. 530. Scope of Subject.—The subject of domestic rela-
tions embraces all of the natural relations, except political,'
existing between individuals, which the law recognizes and
regulates, and also all those dependent relations which, though
formed by consent and contract, partake of something more
than a mere contract relation, and give to the parties standing
in these situations a permanent relation toward each other and
a permanent status in the eye of the law.”
The specific subjects formerly embraced within this designa-
tion were in some measure, or to some degree, connected with
the family or household establishment, and were designated as
relations of husband and wife, parent and child, guardian and
Ward, and master and servant. $.
As to the latter topic, almost all of the features of the old
relation of master and servant have disappeared, and only in
the case of the domestic servant in the family can there be said
to be the slightest resemblance in modern law to the old, and
this is formal rather than substantial.
The acts and conduct out of which grew the relation of
master and servant formerly created a status. The evolution
of law has destroyed this status. There is no such status in our
law as that of a servant, and there is no longer any reason for
treating the subject among those staff of which it was one.
It belongs essentially to the subject of contracts of employ-
ment, although we still find modern treatises entitled “Master
and servant.” i
So long as the designation does not mislead, it matters little
1 Society has been heretofore treated
as a natural as well as a political re-
lation. -
* This idea of status is the dominat-
ing principle of domestic relations.
The thorough comprehension of it
enables one to understand most of
the decisions concerning interstate
marriages and divorces which other-
wise seem mere arbitrary edicts to
serve the passing hour. The status,
the relation toward the state, is pub-
lic; the other phase, inter partes, is
private. Nelson, Div. & Sep., §§ 2–7.
632 I)OMESTIC RELATIONS. [$$ 531, 532.
where the subject is treated, excepting that, being no longer a
domestic relation, it should not be included in that title.
SEC. 531. The Importance of Conception of Status.- The
importance of a just conception of the legal ideas intended by
the word status, or personam, as heretofore explained," is no-
where so manifest in our law as when considering the subject
of domestic relations. -
It is impossible to understand the decisions of our courts in
relation to the subject of jurisdiction over cases involving mar-
riage and divorce without understanding the modern concep-
tion of actions in personam and the notion of status.
In fact, status is the clue which unravels the otherwise ap-
parently irreconcilable conflict between the courts.
In no branch of the law is more reliance placed upon ideas
derived from the Roman law, and naturally so, because in the
private relations of men the ideas of status are almost entirely
confined to domestic relations.” In the English law the whole
system of nobility involves the idea of status.
SEC. 532. The Family.—In our society the family is the cen-
ter of social organization. The same was true under the civil”
law, but in addition it was the unit of political organization.
Under that system the pater familias held dominion, not only
over those joined to him by marriage or the ties of kinship,
but over all persons and things within his establishment or
under his hand, and he was their political representative.
In American law almost the reverse exists. The dominion
of the head of the family is anything but complete, and his
power to enforce authority reduced to the narrowest limits and
permitted only in its mildest form." He is in no sense the
political representative of the members.
1 Ante, pp. 111–15.
2 “The Chief varieties of Status
among natural persons may be re-
ferred to the following causes: 1, sex;
2, minority; 3, ‘patria potesta ? and
‘manus’ (with us all dependent mem-
bers of a family); 4, coverture; 5, ce-
libacy; 6, mental defect; 7, bodily
defect; 8, rank, caste and official po-
sition; 9, race and color; 10, slavery;
11, profession; 12, civil death; 13, il-
“legitimacy; 14, heresy; 15, foreign
nationality; 16, hostile nationality.
All of the facts included in this list,
which might be extended, have been
held, at one time or another, to dif-
ferentiate the legal position of per-
sons affected by them from that of
persons of the normal type.” Hol-
land's Jurisprudence, 297.
8 Holmes, Com. Taw, 342.
4.What would formerly have been
moderate punishment would now be
regarded as cruelty, and, if repeated,
a good ground for divorce. Fulgham
v. State, 46 Ala. 143; Com. v. McAfee,
§ 533.] DOMESTIC RELATIONS. 633,
In our jurisprudence, for some purposes, a family may exist
where no relationship of blood or marriage has ever taken
place, but this, though not anomalous under the civil law, is so
under our system, and such family is recognized only for cer-
tain purposes of favor, such as exemptions."
The properly-constituted family is the basis upon which the
whole social fabric rests, and the inception of it is through
the medium of marriage. &
SEC. 533. Marriage—Nature of:-The relation of marriage
is not like anything else in law. In whatever light it may be
viewed it is peculiarly a relation or condition sui generis. From
the very nature of things, therefore, attempts at definition have
met with little success, because properly it is scarcely the sub-
ject of definition by differentiation from some supposedly sim-
ilar relation, e.g., contract. It can be described and its essentials
108 Mass. 458. Moderate chastise.
ment of children is still a right and
perhaps a parental duty.
1 Ortolan’s Hist. Rom. L. 128. “The
Roman family, in the peculiar shape
it assumed under the Jus Quiritium,
was modeled on a civil rather than
On a natural basis. The tie which
bound members of the same family
was not that of blood; it was their
common position in the midst of an
artificial system. For the formation
of such a family a legal marriage
was an indispensable preliminary;
but it was only a preliminary, and
the peculiar character of the family
did not in any way flow from the tie.
The head of the family was all in all.
Pſe did not so much represent as
absorb in himself the subordinate
members. He alone was sui juris;
i. e., had an independent will; all the
other members were alient juris;
their wills were not independent, but
were only expressed through their
chief. The pater-familias, the head
of the family, was said to have all
the other members of his family in
his power; and this power (patria po-
testas) was the foundation of all that
peculiarly characterizes the Roman
family. At the head of the family
stood the paterfamilias alone. Be-
neath him came his children (sons
and daughters) and his wife, who, in
order to preserve the symmetry of
the system, was treated by law as a
daughter. If a daughter married,
she left this family and passed into
the family of her husband; but, if a.
son married, all his children were as
much in the power of the pater-fa-
7milias as the son himself. Thus, all
the descendants through the male
line were in his power. Each of the
daughters, as long as she remained
unmarried, was also swi juris; but,
directly she formed a legal marriage
and thereby entered into her hus-
band’s family, she passed into the
power of another. Hence it was said.
that a woman was at once the be-
ginning and the end of her family,
caput et finis familiop suae, for di-
rectly she attempted to continue it
she passed into another family.” San-
ders’ Justinian, pp. 28–89; Race v. Old-
ridge, 90 Ill. 250. The observations
in this case on the meaning of the
word familia are absurd, although
the decision is clearly right. Cf. the
above and Holmes’ Common Law,
pp. 342–43.
634. DOMESTIC RELATIONS. [$ 533.
enumerated, but little is gained by comparing it with a contract.
It has by some been termed a mere civil contract." Going to the
Other extreme, it has been designated a sacred ordinance.
The House of Lords of England has expressed the view which
seems most consonant with the facts, viz., that marriage is a status
resulting from a line of conduct indicating the intention to as-
sume the marriage relation. It is not a mere contract between
two parties; its essence is a line of conduct, not a set of promises.”
Each of these different views, however, assumes an under-
standing of other things. Christian civilization maintains that
marriage is the natural state. Modern Christianity maintains
that monogamy is the only state conformable to nature and
the will of Jehovah; others maintain that polygamy is equally
natural, equally sanctioned by the Hebrew traditions.
Merely to suggest that the beautiful sentiment which lies
at the basis of the Anglo-Saxon home found its first and best
expression among that magnificent people whom Selden and
others claimed to be the true ancestors of the Saxons,” it may
not be unprofitable to direct attention to Homer's expression
of what must have been the traditional notion of the Greeks:
“There is no fairer thing,
Than when the lord and lady with one soul,
One home possesses.”4
1 Professor Maine says that this
is an unfortunate designation. The
habit is fast disappearing. Maine's
Anc. Law, ch. 5, p. 165.
2 Campbell v. Campbell (Breadal-
bane's Case), 1 Law Rep. (Scotch Ap-
peals and Divorce), 182. It is pecul-
iarly a status. 1 Austin, Jur. 711.
Some courts adhere more closely than
would seem reasonable to the view
that marriage is a mere contract.
See Voorhees v. Voorhees, 46 N. J. Eq.
:411. See Stevens v. Stevens (N.J.), 38
Atl. Rep. 460. Serious consequences
follow this view, e. g.: If the contract
of marriage is void when made, sub-
sequent conduct does not affect the
status. “In all civilized society, this
marriage by nature puts on a form of
celebration, which throws the vincu-
lum juris about the parties, making
of their contract a clvil status, an in-
stitution of society. Being consti-
tuted by law, as the result of con-
tract, it becomes a legal corporate
unity, formed out of nature's duality,
indissoluble by mutual consent, and
except by legal authority, when the
public good and justice to the parties
would be subserved by its dissolution.
The law makes contract, status. The
law Cannot make the status without
a contract between the parties. The
parties cannot make, nor destroy, the
legal status by their contract. The
law alone can bind in the status of
marriage as the result of their con-
tract. The law alone can unbind.
Whom law has joined together, man
Cannot put asunder.” John Randolph
Tucker, Va. Bar Ass’n Rep. 1891.
3See 1 Wilson's Works, 426–31; 2
id. 176–79.
4 Od. VI, 182–85.
§ 533.] DOMESTIC RELATIONs. 635
It is not to Our purpose in any measure to discuss whether
the permanent union of the sexes is according to or contrary
to nature," but to indicate precisely the nature of that condi-
tion recognized in municipal law as marriage.
Changing somewhat an expression of the learned jurist, John
Randolph Tucker,” I would say that the consensus of civilized
mankind,” ſus naturale, jus Dei, jus gentium, jus civile, have
made the union of one man and one woman in family headship
the primal relation of social life, the essentiai foundation of
civilized polity, the foundation of purity, the mainspring of
progress, the measure of happiness of the race. Civilized so-
ciety is perfected through and by this relation. Such, at least,
is the acceptable theory of American law.
In the same address he felicitously expresses his conception
of marriage as “The natural duality of man and woman, in-
corporated” into a status of perpetual unity, winculo juris, and
only dissoluble by a decree of law — this is marriage.”"
The Characteristics of a Marriage in the eye of municipal
law are four: A status as distinguished from a contract. A
perpetual relation as distinguished from a casual One. A unity
of natural beings, resulting in an artificial entity—the family.
A bond of the law vinculo juris as distinguished from the obli-
gation of a contract. As to the perpetuity, that relates to the
character of the relation, so far as the acts of the parties are
concerned, analogous to the perpetual succession of a corpo-
ration.
Marriage is the most elemental of social relations. As so-
1 The ancient Hebrew law, allow- They twain shall be one flesh.” Ad-
ing husbands to put away their
wives, does not compare favorably
with the Greek sentiment. 1 Bishop,
M. & D, 54.
* “The consensus of mankind, jus
avaturale, jus gentium, jus Dei, have
made the union of one man and one
woman in family headship the primal
law of social life, the essential foun-
dation of civilized polity, and the
fountain of the purity, perpetuity,
progress and happiness of the race.
Man is a dual unit. The human
unity is perfected through the human
duality. Eadem caro vir et wasor:
dress before Va. Bar Ass'n, 1896,
p. 198.
8The expression must be restricted;
it cannot be universal. Our courts
would no doubt recognize the rights
of any one of several wives by a
marriage valid where made.
4 Taurence v. Id., 164 Ill. 371.
5The word “incorporated,” whether
by him so used, expresses very hap-
pily the idea of a new artificial ca-
pacity conferred by law — a persona.
6 Marriage here means the condi-
tion, not the mode of attaining it.
636 DOMESTIC RELATIONS. [$ 534.
ciety precedes government, so the family precedes society, and
likewise the formative process of the family is marriage.
The supreme court of the United States quoted approvingly
the language of Justice Appleton, speaking for the supreme
court of Maine, as follows: “When the contracting parties
have entered into the married state, they have not so much
entered into a contract as into a new relation, the rights, du-
ties and obligations of which rest not upon their agreement,
but upon the general law of the state, statutory or common,
which defines and prescribes those rights, duties and obliga-
tions. They are of law, not of contract. It was of contract
(the consent, or engagement) that the relation should be es-
tablished, but, being established, the power of the parties as to
its extent or duration is at an end. Their rights under it are
determined by the will of the sovereign, as evidenced by law.”
It is more than a contract. It requires certain acts inde-
pendent of and beyond the contract.”
In truth, if the parties should contract de praesent to enter
into the marriage state, but at the same time add a condition
that either might terminate it, or agree together that they
should never sustain the essential relations of man and wife,
their agreement would constitute marriage, but the condition
would be void.”
SEC. 534. Intent.*— It is frequently said that consent is the
essential thing in marriage,” but like many other general ex-
under such circumstances as by law
required, so that, though they should,
after consent so given, by death or
disagreement or any other cause,
1 Maynard v. Hill, 125 U. S. 190.
2 Id.
8 See Bishop, M. & D., §§ 301, 302.
4 The proof of intent is another
thing. See sec. 540, “Proof of Mar-
riage.”
5 The two essentials of a valid mar-
riage are capacity and consent. Voor-
hees v. Voorhees, 46 N. J. Eq. 411.
This idea taken from the Latin is
expressed in several forms, such as
“Nuptias non concubitus sed consen-
Sws facit; ” “Consensus, mom concubi-
tus, facit matrimonium; ” “Concu-
bitus mom consensus facit nuptias.”
Broom says: “Marriage is constituted
by the conjunctio animorum, or pres-
ent consent of the parties, expressed
happen not to consummate the mar-
riage conjunctione corporum, they
are, nevertheless, entitled to all the
legal rights consequent thereon.”
The above maxim has been adopted
from the civil law by the common-
law lawyers, who, indeed, have bor-
rowed (especially in ancient times)
almost all their notions of the legiti-
macy of marriage from the canon
and civil laws; and by the latter, as
well as by the earlier ecclesiastical
law, marriage was a mere consensual
contract, only differing from other
§ 535.] DOMESTIC RELATIONS. 637
pressions this consent is to be determined not merely by the
subsequent declaration of one or both of the parties, but by
their conduct and language, while the transaction, which may
properly be termed the res gestaº, is taking place.
If the parties are both sui juris they must be held to intend
the natural and probable results of their acts, and it is of no
avail as preventing the fastening of the bonds of matrimony
that the parties did not understand that such would be the
consequences of their acts, or that one of them held a secret
intent not to contract a marriage." -
Especially unjust would it be to allow one of the contracting
parties to release himself or herself from the bond by a subse-
quent declaration of his or her intent; but it has been held
that the declarations of both that they did not intend the mar-
riage relation, in a case where no ceremony had been performed,
was not conclusive upon the court, which could, and in that
case did, hold the parties man and wife.” - ~.
SEC. 535. Who May Marry — Capacity.—Consent being of
the essence of and one of the essential elements to a valid
marriage, it follows that only such persons as are deemed, in
the eye of the law, capable of giving a real consent can enter
into it.
A lunatic or insane person cannot marry. Such marriages
are sometimes said to be absolutely void, but it is doubtful if
they may not bind until set aside.” As to infants, though of
sound mind and physically capable at some time to marry, it
has always been deemed lawful for the state to fix the age at
which marriage may be contracted. In this country a marriage
before the age of seven is void; between the ages of seven and
twelve and fourteen it is voidable; after fourteen and twelve re-
spectively, between a girl and boy, it is binding; * but notwith-
contracts of this class in being indis-
soluble even by the consent of the
contracting parties. It was always
deemed to be ‘a contract executed
without any part performance; ” so
that the maxim was undisputed and
peremptory, consensus, non concubi-
tus, facit muptias vel matrimonium.”
Broom's Legal Maxims, 505. See Reg.
v. Millis, 10 Cl. & Fin. 719; Dalrym-
ple v. Dalrymple, 2 Hagg. Cons. R.
54; S. C., 4 Eng. Ecc. 485; Brook v.
Brook, 27 L. J. Ch. 401; S. C., 9 H. L.
CaS. 193.
1 Schouler, Dom. Rel., 41, 42.
2 Stevens v. Stevens (N. J.), 38 Atl.
Rep. 460.
3 Wightman v. Wightman, 4 Johns.
Ch. 343; 1 L. Ed. N. Y. Ch. Rep. 861.
4 Parton v. Hervey, 1 Gray, 119.
See 1 Bishop, M. & D., §§ 568–577.
638 - DOMESTIC RELATIONS. [$ 536.
standing they may be prohibited under penalty from marrying,
or any other person be prohibited from performing a marriage
ceremony for them, a marriage advisedly entered into after
these ages is binding. -
The Consent Must be Real.—It follows that nothing which
deprives it of that character, as complete intoxication, obliter-
ating the sense or knowledge of what is transpiring, or duress,
prevents that full and free consent which is required.
Fraud.— Precisely upon the same grounds that an assent to
any act procured by fraud deprives the assent of the quality
of being free and intelligent, so fraud and deception may make
a marriage voidable, and be ground for annulling it."
Impotency.—The capacity to enter into the marriage state
must be something more than mental. Though never so intel-
lectually and physically strong in every other respect, the par-
ties must be physically capable of complete copulation. Lack-
ing in this, they are called “impotent,” and a marriage may be
annulled. Mere inability to create or conceive children will
not, in this country, constitute such impotency as to constitute
a ground for annulling a marriage; but any physical, nervous
or mental peculiarity, absolutely preventing copulation, is cause
for annulment.” -
SEC. 536. Disability — Consanguinity.— Marriages between
near relatives, either by consanguinity or affinity, are termed
“incestuous.” We may not know why, nor how, but observation
proves that purity of the blood of the issue of such marriage
is destroyed. Insanity and disease are certain accompaniments,
and so it is said the law of nature condemns it. The jus gen-
tºum, recognizes the law of nature, and the municipal law of
all civilized countries absolutely prohibits incest and incestuous
marriages.
Consanguinity, properly speaking, is a blood relationship; or
in one word, kinship. Civilized nations do not always agree as
to the degrees of remoteness or proximity within which mar-
riages may be contracted. .
In some jurisdictions one may marry his cousin, but not his
uncle or his aunt. Marriages between nearer relationships
than cousins are not permitted in any civilized country.” Upon
1 See post, sec. ——. niece is within the prohibited de-
21 Bishop, M., D. & S., § 767. grees; but such marriages are notab-
* A marriage between uncle and solutely void. They may be annulled
§ 536.] I}OMESTIC RELATIONS. 639
these points there is necessarily conflict of opinion, but certain.
principles receive universal assent, and it is believed that the
opinion of an English jurist states the substantially common
ground. . e -
“All nations allow marriage contracts; they are juris gen-
tºum, and the subjects of all nations are equally concerned in
them; and from the infinite mischief and confusion that must
necessarily arise to the subjects of all nations, with respect to
legitimacy, succession and other rights, if the respective laws.
of different countries were only to be observed, as to marriages
contracted by the subjects of those countries abroad, all nations
have consented, or must be presumed to consent, for the com-
mon benefit and advantage, that such marriages should be
good, or not, according to the laws of the country where they
are made. It is of equal consequence to all that one rule in
these cases should be observed by all countries.” "
The first general principle is that such marriages are valid, or
not, according to the laws of the country where they are made.”
The admitted eaceptions insisted upon are: - -
Fºrst. That marriages which are deemed by the lea, for con-
trary to the law of nature, as recognized in that particular juris-
diction, are not valid, though allowed in the foreign jurisdic-
tion where the marriage was celebrated.
Second. As to its own citizens, marriage being a status, the
law-making power of the state may declare what shall be rec-
Ognized as marriage and what shall be deemed contrary to the
policy of its laws.
Of the first class only two are recognized in the United
States, viz.: polygamous” and incestuous marriages.
The second class, incestuous marriages, are those contracted
at any time during the life of both,
but after the death of one they are
held valid. Bonham v. Badgley, 2
Gilm. 622; 2 Kent, *82.
1 Sir Edward Simpson in Scrimshire
v. Scrimshire, 2 Hagg. Con. Rep.
395; Hynes v. McDermott, 91 N.Y.451.
It is altogether probable that a mar-
riage solemnized anywhere accord-
ing to the law of the domicile of the
parties would be held in that domi-
Cile as good.
* Com. v. Lane, 113 Mass. 458, 463–66.
his wives.
8 But it will not do to say that polyg-
amy cannot be recognized to any
extent. For example, should sub-
jects of the sultan of Turkey be al-
lowed by treaty or statute to inherit,
the relation of husband and wife, as
to his subjects not domiciled here,
might be recognized to include all
What is meant is, that,
polgamy cannot be recognized as to
any one domiciled in the United
States. See Hutchins v. Kimmell,
31 Mich. 126.
640 DOMESTIO, RELATIONS.
[$ 537.
between persons within the prohibited degrees of consanguin-
ity, as recognized by Our law.
These include all persons in the directline of consanguinity,+
grandfather, parents, children and other descendants, however
remote from each other."
In the collateral lines, brothers and sisters are always pro-
hibited, but the absolute prohibition is not universal any further.”
Beyond these degrees first cousins may marry without violating
the law of nature, as so understood.”
SEC. 537. Affinity.— Affinity is that relationship which is not
of kin, but arises by marriage, and its closest examples are the
parents, brothers and sisters of the spouse.
It can readily be seen that, as there is no blood relationship,
the same natural reasons do not exist against marriage in such
cases. There has been much learned controversy over the
validity of marriage between One and his deceased wife's sister,
or vice versa, but unless prohibited by statute there is no objec-
tion to this practice.*
1 For the English canonical table,
see 1 Bishop, M. & D., § 739.
* Com. v. Lane, Supra.
3 Id.; Schouler's Dom. Rel. 28;
Wightman v. Wightman, 4 Johns.
Ch. 343; 1 Lawy. Ed. N. Y. Ch. Rep.
861. Chancellor Kent in this case
says: “The general usage of man-
kind is sufficient to settle the ques-
tion, if it were possible to have any
doubt on the subject, and it must
have proceeded from some strong,
uniform and natural principle. Pro-
hibitions of the natural law are of
absolute, uniform and universal obli-
gation. They become rules of the
Common law, which is founded in
the common reason and acknowl-
edged duty of mankind, sanctioned
by immemorial usage, and as such
are clearly binding. To this extent,
then, I apprehend it to be within the
power and within the duty of this
court to enforce the prohibition.
Such marriages should be declared
void as contra bomos mores. But as
to the other collateral degrees, be-
yond brother and sister, I should in-
cline to the intimation of the judges
in Harrison v. Buswell, Vaugh. 206;
2 Vent. 9, S. S., that as we have no
statute on the subject, and no train
of common-law decisions independ-
ent of any statute authority, the
Levitical degrees are not binding as
a rule of municipal obedience. Mar-
riages out of the lineal line, and in
the collateral line, beyond the de-
gree of brothers and sisters, could
not be well declared void, as against
the first principles of society. The
laws or usages of all the nations to
whom I have referred do, indeed,
extend the prohibition to remoter de-
grees, but this is stepping out of the
family circle; and I cannot put the
prohibition on any other ground than
positive institution. There is a great
diversity of usage on this subject.
Neque teneo, megue dicta refello. The
limitation must be left until the leg-
islature thinks proper to make some
provision in the case, to the injunc-
tions of religion, and to the control
of manners and Opinion.”
4 Sutton v. Warren, 10 Metc. 451. A.
§ 538.] DOMESTIC RELATIONS. 641
Such marriages were even spoken of by the English courts
as incestuous, but, with all due deference to the so-called best
minds, such an epithet seems to be wholly out of place and ab-
surd in that connection. However ill-advised in the parties or
impolitic such unions may be, there is certainly nothing even
analogous to incest in the marriage.
Upon these subjects the student need only examine the statu-
tory provisions of his state.
SEC. 538. Local Prohibitions.—Aside from kinship and af-
finity, which are more generally recognized as appropriate
grounds of limitation upon marriage, some states, as a penalty
for misconduct during the marriage relation, prohibit the guilty
party against whom a divorce has been granted, or the guilty
party and the paramour, from marrying again within a speci-
fied time, or absolutely, though generally during the life-time
of the injured party; and it is frequently sought to evade these
provisions, or provisions requiring license and ceremony, by re-
moving to another state merely for the purpose of celebrating
a marriage, and returning, after the marriage has been per-
formed, to the state of the domicile." Such a marriage is valid
unless prohibited by statute, and it depends upon the statute
and its construction whether the marriage is absolutely void
for all purposes or not.”
very learned controversy took place
between the English and American
courts upon this subject, which is
presented in Com. v. Lane, 113 Mass.
458, at page 467. See also 1 Bishop on
Mar. & Div., sec. 876.
1 Com. v. Lane, 113 Mass. 458. In
this case Lane, a resident of Massa-
chusetts, was divorced there for his
fault. A statute of that state pro-
hibited the marriage of a guilty
party without leave of court, and
provided that he should be guilty of
polygamy for a violation. It further
provided that if the parties, residents
Of the state, went to another state in
Order to evade the statute, intending
to return, the marriage should be
void. Lane, while still a resident of
Massachusetts, in due form, accord-
ing to the state law, married in New
Hampshire a resident of Massachu-
setts. He was indicted for polyg-
amy. The court held that the in-
tent must be proven, and in the ab-
sence of such proof the marriage was
valid. ---
2 Id. In later cases it has been held,
where both parties intended to evade
the law, that the marriage was void,
and that either might have it an-
nulled. Tyler v. Tyler, 170 Mass. 150.
It has quite recently been held under
that statute, reading “persons” in
the plural, that both must have the
intent or the marriage will be valid.
Whippen v. Whippen, 171 Mass. 560.
The discussion in the case is pecul-
iarly instructive. The same principles
are frequently applied. Pennegar v.
State, 87 Tenn. 244. In Norman v.
Norman, 54 Pac. Rep. 143, the parties
took a steamer and had the cere-
mony performed on the high sea, but
41
642 DOMESTIC RELATIONS. [$ 539.
Here the principle of state policy, that the status of its citi-
zens is peculiarly within the control of the state, and that it is
for its tribunal to determine whether this status ‘has been le.
gally changed," and the other opinion above mentioned, that a
marriage valid where celebrated is valid everywhere, is subor-
dinate to the state control over the status of its residents.”
It may be readily understood that, marriage being a status,
and one in which the state is interested as well as the parties,
the first principle just mentioned is the paramount One, and it.
is for the state to decide upon the status of its own citizens; and
the mere fact that the marriage on foreign soil is with a per-
son a non-resident of the state, even, cannot aid or change the
matter, as against a statute aimed at him, as to the status of a
guilty party who is prohibited from marrying. .
SEC. 539. Marriage, How Formed.— In the absence of a re-
strictive statute,” the manner in which marriage may be entered
into and proved, and likewise the manner of its dissolution, de-
pend in no small degree upon the view taken by the court of
the nature of marriage. -
JFirst illustration: If it is held that marriage is a mere civil
contract, it is plain that the circumstances, language and acts
surrounding the inception of the relation at the time of and
preceding the commencement of cohabitation, or surrounding
the time when the marriage is claimed to have taken place, con-
stitute the principal, if not the sole, subject of inquiry, and that
all evidence of subsequent acts and conduct is relevant to and
probative merely as indicating the existence of a contract at
some time; that is, the inquiry is for a contract rather than a
condition, the formal expression of an intent rather than the
intent. *
Second illustration: If, on the contrary, marriage is regarded
as a status which results from conjugal conduct and connubial
habit, it is plain that the marriage may arise by a deliberate
contract contemporaneous with the beginning of cohabitation,
or may be held to arise from connubial conduct and association
it was held unavailing. It was held Holmes, 1 Abb. (U.S.) 525; Fed. Cases.
that the high sea was not another No. 6,638.
Country. The underlying principle 1 Whippen v. Whippen (Mass., 1898),
is that the parties are bound by the 51 N. E. Rep. 174.
law of their domicile. This case has 2 In re Stull’s Estate, 183 Pa. St. 625.
no precise parallel. See Holmes v. 3 Post, p. 647.
§ *
539.] DOMESTIC RELATIONS. 643
continued for such a length of time as indicates to the satisfac-
tion of the court the intention of the parties to assume the
status.
So the inception may be meretricious, and gradually change
by conjugal association and conduct into a valid marriage."
Results of the most serious kind depend upon these distinc-
tions, and one is led to wonder why, in civilized society, courts
will adhere to a technical expression and narrow view, which
subjects the innocent and unconscious citizen to the stigma of
illicit cohabitation, and the issue of a constant, upright and af-
fectionate pair to the stigma of bastardy; yet some of our
courts have advanced no further.” -
It is difficult, in discussing the subject of this section, not to
digress and discuss the subject of the next section, which re-
lates to the proof of marriage. -
Those courts which hold that marriage is a mere contract,
hold that the common law requires parties who are under no
legal disability and a contract substantially in the present
time—that is, at the time of beginning the relation—that “we
take each other now,” and not that “we take each other at a
future time; ”* that there are two essentials to a valid mar-
riage — capacity and consent. They do not require a cere-
monial marriage, but insist upon a contract of marriage per
verba de present; as the beginning of the marriage relation
(not necessarily at the beginning of cohabitation).
The adverse view requires conduct showing the assumption
of the status. “Whatever,” says the supreme court of Illinois,
“may be the rule governing other contracts, the contract of
1 See Sec. 540.
* The case of Voorhees v. Voorhees,
47 N. J. Eq. 315, appears to rest only
on Cartwright v. McGown, 121 Ill.
388, but the latter case has essential
points of divergence and seems to be
based on no precedent. See Nelson,
Div. & Sep., §§ 2, 3. -
*Stevens v. Stevens, 38 Atl. Rep.
460; Voorhees v. Voorhees, 46 N. J.
Eq. 411. The absurdities to which
this view may lead are well illus-
trated in a recent case in Illinois
(McKenna v. McKenna, 73 Ill. App.
64), where the learned justice writing
the opinion held, in substance, that
although the man Seeking cohabita-
tion stated that “I take you now as
my wife,” it not appearing that the
woman expressly assented to the pro-
posal to be his wife, no amount of
subsequent conduct could raise a
presumption of marriage. This de-
cision has been affirmed, the learned
supreme court holding that the
woman’s assent, being merely by ac-
quiescence, embraced only assent to
copulation, not to marriage. 180 Ill.
577.
644 powestic RELATIoss. [$ 539.
marriage is jure gențium, and consent and the assumption of
the marriage status are all that is required by natural or public
law.” I
Jormal Marriages.—The laws of civilized countries univer-
Sally provide for some public celebration of marriage, but only
in a few countries is such a ceremony as is provided by law
absolutely essential to marriage.”
It is the rule in most of the states that, while the parties
may be punished for not observing the law, the relation of
marriage, Once entered upon, is not to be declared void because
Of the non-observance of statutory directions.”
Marriage may be contracted or celebrated by a public wed-
ding by a minister, or a private wedding in the same way, or
by performing the ceremony in the presence of a magistrate
in accordance with the forms of law, or a declaration in the
presence of friends of the intention to take each other as man
and wife.
Common-law Marriages.— Besides these formal modes, if the
parties, by words, indicate their present mutual intention only to
each other to become man and wife, followed by cohabitation,
they become immediately man and wife, but they may acquire
this status without any of the above formalities; for if, in the
absence of impediments, they associate together under circum-
held that there could be no more non-
Ceremonial marriages in that state.
Norman v. Norman (Cal., 1898), 54
Pac. Rep. 143. -
*This was never so as to some
States. See Com. v. Munson, 127 Mass.
1 Laurence v. Laurence, 164 Ill. 371.
2No attempt will be here made to
explain these statutory requirements
of the different states. The general
rule is that statutes prescribing the
forms of ceremony and requisite steps
are directory, unless the statute Con-
tains words clearly indicating that
unless the formalities are observed
the marriage is void. Meister v.
Moore, 96 U. S. 76; Cartwright v. Mc-
Gown, 121 Ill. 388. In California, the
code originally provided that mar-
riage could be entered into by being
solemnized, etc., or “by a mutual as-
sumption of marital rights, duties or
obligations.” A subsequent revision
omitted these, and added that a non-
compliance “by others than the par-
ties” should not invalidate. It was
459, where the ancient and modern
law of that and several other states
is given. See Denison v. Denison, 35
Md. 361. In Cheney v. Arnold, 15
N. Y. 345, it was contended that in-
formal, non-ceremonious marriages
were not valid at common law; but
such is not the prevailing view in
that state as to the common law.
4. It is not necessary, if this inten-
tion is clearly proven, to show co-
habitation. Carey v. Hulett, 66 Minn.
327; Jackson v. Winne, 7 Wend. 47.
§ 540.] DOMESTIC RELATIONS.
645
stances which indicate the intention to form a permanent
conjugal relation, they may be held to be man and wife irre-
spective of the secret intent of either or both. The marriage
relation or status is one in which the state is vitally interested,
and parties cannot complain if the courts hold that their acts
shall be held to be the best evidence of their intent." While
it has quite generally been affirmed that a contract per verba.
de present constituted marriage, it never was the common law
that a promise to marry in the future, i. e., an engagement fol-
lowed by copulation, constituted a marriage.”
SEC. 540. Proof of Marriage — The Fact in Issue.- The
character of evidence, the requisite as to amount or quantum
of proof, and the presumptions which aid or oppose the con-
firmation of marriage, are affected by the light in which the
nature of marriage is viewed by the court; but the manner in
which the issue arises,” and the effect of the decision, the real
cause for conflict between the cases, is in most instances ascrib-
able to a misconception as to what is the ultimate fact in issue
On a question of common-law marriage.
As was stated in the last section, if the inquiry is directed
as to whether an actual" contract of marriage has been ex-
pressly entered into, the proof must necessarily be directed to
that as the fact in issue, and all presumptions and all evidence
ment followed by copulation is pre-
Sumed to be marriage. Cartwright
v. McGown, 121 Ill. 388.
1 The adage, “Actions speak louder
than words,” is not a mere play-
ground saw; it speaks a natural
truth. Schouler, Dom. Rel. *41, 42.
“When two persons agree to have
Commerce for procreation and bring-
ing up of children, and for lasting
cohabitation, that, in a state of nat-
ure, would be a marriage, and, in the
absence of all civil and religious in-
stitutions, might safely be presumed
to be, as it is properly called, a mar-
riage in the sight of God.” Tindo v.
Belisario, 1 Hagg. Cons. 216, per Lord
Stowell; Teter v. Teter, 101 Ind. 129;
Stevens v. Stevens, Supra.
2 Cheney v. Arnold, 15 N. Y. 345.
This must be taken to mean followed
immediately by copulation, for it is
no doubt the rule that an engage-
3 Collins v. Collins, 80 N. Y. 1; Low-
ery v. People, 172 Ill. 466.
4 That is, the inquiry is as to a for-
mal contract, although the proof of
it may be by presumption from facts
and circumstances, Voorhees v. Voor-
hees, 46 N. J. Eq. 411. This case pre-
sents the extreme view of the con-
tract theory, and for that reason
should be carefully considered. The
New York cases cited do not sustain
the decision or the reasoning. The
case of Cartwright v. McGown, 121
Ill. 388, is distinguishable in part, but
supports the decision and the reason-
ing. But the language of the opinion
also supports the status theory.
646 DOMESTIC RELATIONS. [$ 540.
relate to and bear upon the question of the existence or non-
existence of such fact. -
If, on the other hand, the question is one as to the Voluntary
assumption of the status, the presumptions and evidence relate
to the intention of the parties and their acts as evidence of the
status. The distinction is radical. Under the first view the
proof of an actual agreement or a ceremonial marriage while
an impediment exists is regarded as good ground for refusing
to allow proof of unbroken connubial habit with perfect con-
stancy, extending for years after the impediment has ceased,
to raise any presumption of the assumption of the status.”
Where the fact in issue is held to be whether, at any time
before issue joined,” the marriage status has existed, the ex-
istence of the impediment only precludes the existence of the
status so long as the impediment remains; but the evidence of
prior conduct, affection, constancy and connubial habit may
all be allowed full force as showing the desire and intent of the
parties; and if this evidence shows a continuance of this con-
duct for a sufficient time after the removal of the impediment,
if the parties know of its existence, to indicate that the parties
intend to continue the relation, or continues without knowledge
of the Impediment and its removal, the marriage may and should
be presumed at the earliest moment after removal of the im-
pediment.* N -
*This will of course always em-
brace the res gestoe.
1 The latter is the more reasonable
theory, and is supported by the
greater number and weight of au-
thority. See Teter v. Teter, 101 Ind.
129, and cases; also notes sub; In re
Taylor, 9 Paige Ch. 611 (L. ed. N. Y.
Ch. Rep.).
2 The New Jersey court holds that
all subsequent proof bears only upon
the original contract. Voorhees v.
Voorhees, 46 N. J. Eq. 411. The other
extreme case cited in this case holds
that, if the impediment was not
$nown, then its removal allows the
presumption to avail upon the re-
moval of the impediment. Cart-
wright v. McGown, 121 Ill. 388. This
reasoning really destroys the reason-
ing upon which both these decisions
rest. -
* The one set of cases insists upon
proof of a contract, the other upon
proof of conduct indicating matri-
monial intention. The one in effect
shows that Only by a contract ex-
pressed can marriage be entered into,
the other that conduct may impose
the status. One class expresses their
view that conduct and repute are not
marriage, but Only evidence of it; but
the other may reply that the express
Contract Or a ceremony are not mar-
riage, but Only prima facie evidence
of it. The one insists on proof of what
is mere evidence of the fact in issue
and Only one of its modes of proof.
The other on proof of the real thing
in issue.
§ 541.] IDOMESTIC RELATIONS. 64'ſ
SEC. 541. Means or Instruments of Proof–The various
phases in which the question presents itself are of great im-
portance. For example, one party may be seeking the disso-
lution of the contract against the other, or seeking relief based
upon the existence of the contract; or, after the death of one,
the rights of husband or wife may be asserted by the other;"
Or, in litigation, the question of the marriage of one of the
parties, or some other person, may be drawn in question as the
principal question, but collateral to the real issue; or the pros-
ecution may be one by the state for bigamy or polygamy; or
again, in any issue however formed, the effect of the finding,
whether it be to show the commission of a crime by one or fix
the status of illegitimacy upon the issue of marriage, will have
weight with the court as to the existence of presumptions and
the quantum of proof.”
Where Common-law Marriage is Woff Jęecognized.— It is ap-
parent that where the marriage is alleged to have taken place
between citizens of and to have been consummated in a state
Or country where non-ceremonial marriages are void, the proof
must show a ceremonial marriage. -
Even in a country where such a marriage must be celebrated,
the rule that a marriage valid where celebrated is valid every-
where is recognized, and a marriage solemnized or contracted
in another state or foreign country without a ceremony may be
recognized and enforced.”
Where marriage is deemed a mere civil contract, the evidence
of this contract need not, except for some purposes,” be by di-
1 Collins v. Collins, 80 N. Y. 1. All
Courts agree that this intention can
be shown by a contract de presenti,
ceremonial or formal, or by a line of
Conduct showing that intention. The
Court of Illinois says “it is impossi-
ble to fix a standard by which the
evidence of marriage in every case
should be determined, each case de-
pending upon its own facts and at-
tending circumstances. How the
Conduct and bearing of the parties
are regarded by their friends and
relatives, and by those with whom
they associate (repute), introducing
each other as husband and wife (as-
suming the status),-- these are cir-
cumstances of more or less weight,
as is the length of time the parties
have lived together, and the like.
Cartwright v. McGown, 121 III. 399.
See also Port v. Port, 70 Ill. 484, and
Ca,SéS. -
2Teter v. Teter, 101 Ind. 129.
8The Massachusetts cases will suf-
fice to sustain this position. Ante,
Sec. 538.
4Some courts adopt the policy that
on an application for alimony pen-
demte lite there should be direct
proof. Collins v. Collins, 80 N. Y. 1.
648 IDOMESTIC RELATIONS. - [$ 541,
rect proof of the language of the parties, indicating a present
intention to take each other as man and wife, but the marriage
may be proven by facts and circumstances, admissions of the
parties, holding themselves out as man and wife, or general re-
pute in the neighborhood where they reside, in precisely the
same manner as in those jurisdictions where marriage is held
to be a status arising from conduct, language or acts indicating
matrimonial intent."
The chief difficulty lies in cases where a marriage ceremony
has been performed, but it is void or voidable because of some
impediment, such as a prior marriage, or in cases where the
parties knowingly entered into an illicit cohabitation. In some
jurisdictions, where there was an illegal ceremony performed,
the parties seem to be in a worse situation than if the incep-
tion was illicit or meretricious, because it has even been held
that both parties must have known of the removal of the im-
pediment,” and after such knowledge shall by some act or
change of conduct indicate an intention to re-contract.
It is universally held that where the inception is meretri-
cious, it is presumed to continue meretricious until there is
some proof of a change of condition or conduct.” The only
difference between the holding is that in the one case the change
should indicate an intention to contract anew, while in the other
the change should merely indicate an intention to continue a
permanent conjugal relation.* The difference is apparently very
slight, but it is real, and of very serious consequence, because
in the latter case the courts will hold that if the relation seems
to have been affectionate and constant from the start, that the
trial tribunal, whether it be jury or chancellor, may presume
the intention at the first moment the impediment is removed,
merely from the evidence of uninterrupted conjugal conduct
for such a period as would satisfy the mind in case no impedi-
ment had existed; whereas, in the other tribunal, it must at
least be shown that the parties continued the relation after
knowledge by both that there was no longer an impediment.”
1 Voorhees v. Voorhees, 46 N. J. Eq. v. McGown, 121 id. 399; Hynes v.
411. See Stevens v. Stevens, 38 Atl. McDermott, 91 N. Y. 451; Collins v.
Rep. 460. Collins, 80 id. 1–9; Williams v. Will-
* Voorhees v. Voorhees, supra. iams, 46 Wis. 464, .
*There is no conflict on the point. 4 Id. ; cases cited in next section.
Elzas v. Elzas, 171 Ill. 632; Cartwright 5 See next section.
§ 542.] IDOMIESTIC RELATIONS. 649
There seems to be but one jurisdiction where the former
view has been pushed to the extreme, and that is in the state
of New Jersey, notably in the case of Voorhees v. Voorhees."
The case cannot be defended upon authority, and none of the
cases except Cartwright v. McGown,” give even plausibility to
the decision, and the latter case, although very similar in prin-
ciple, is not precisely in point in fact, and is based upon no
authority which goes to that length, while the reasoning of the
case falls short of sustaining the decision.”
SEC. 542. Proof–The English Rule.
These cases do not
pretend to be in conflict with the current of authority, but the
case of Voorhees v. Voorhees is in direct conflict with the vast
weight of authority.”
Where Marriage is Held to be a Status Arising from Con-
duct.—This view does not have its origin in the celebrated case
of Campbell v. Campbell, otherwise called the Breadalbane case,
but its finest exposition is there given. .
In that case the ancestor, a scion of the House of Campbell,
146 N. J. Eq. 411.
2 121 III. 399.
3 Nevertheless Cartwright v. Mc-
Gown should be properly classed
with Voorhees v. Voorhees. I doubt
whether Voorhees v. Voorhees indi-
cates the law of New Jersey at the
present, and certainly Cartwright v.
McGown is not a fair exponent of
the law of Illinois as understood at
the present time. In the New Jersey
case an actual divorce existed when
the second marriage was celebrated.
It was fraudulent, but it existed.
None existed in the Illinois case.
After the marriage both of the first
wives obtained divorces. That Cart-
wright v. McGown is not under-
stood as applied in the New Jersey
case is shown by a case decided by
the appellate court of Illinois in
1896 — nine years later than the Cart-
wright case. A marriage ceremony
was performed while both parties
knew that a former marriage ex-
isted, but the parties lived together
with matrimonial habit and repute
for Seven years after it was dissolved.
The husband then brought suit to
disaffirm and annul the marriage.
Mr. Justice Waterman, delivering the
opinion, says: “We are of the opin-
ion that the chancellor was right in
concluding that from and after the
performance of the ceremony of mar-
riage of the parties to this suit, and
the entry of the decree of divorce of
appellee from Salmonsohn, the inter-
course between appellant and appel-
lee was not meretricious. Appellee
was then a marriageable woman, and
however invalid the previous under-
taking between appellant and appel-
lee may have Originally been, appel-
lant’s conduct in continuing for seven
years thereafter to live with and holdſ
her out to the world as his wife must
be taken as a ratification of the mar-
riage ceremony, performed with all
solemnity by the Rev. Doctor With-
row. See Port v. Port, 70 Ill. 484.”
4 Perhaps Mr. Justice Garrison’s
dissenting opinion in Voorhees v.
Voorhees, 20 Atl. Rep. 676, should be
excepted from this statement.
850 DOMIESTIC RELATIONS. [$ 542.
eloped with the wife of a grocer, lived with her several years
before the death of the husband, had a ceremony performed
while he was known to have been alive, and there was no cere-
mony or change in their mode of life after his death. The
claim of those attacking the marriage was that, it being cer-
tain that the inception was illicit and known to be so, and as
there was no marked change in their relation, habits or repute,
such relation continued its character, and must be presumed
to so continue until proof of some marked change.
The lord chancellor, with the approval of his brethren, held
that marriage is a status resulting from a line of conduct indi-
cating an intention to assume the marriage relation, not a
mere contract between two parties. Its essential is a line of
conduct, not a set of promises."
It was also urged in the Breadalbane case that the presump-
tion from cohabitation could be allowed only as evidence of
matrimonial consent at the Origin of the cohabitation, and con-
sequently such presumption could not obtain in that case; but
Lord Westbury said: “You must infer the consent to have been
given at the first moment when you find the parties able to
enter into the contract.””
1 Campbell v. Campbell (Breadal-
bane's Case), 1 Law Rep. Scotch and
IDjV. 182. $
2 The lord chancellor, referring to
the language of Lord Redesdale in
Cunningham v. Cunningham, 2 Dow,
483, relied upon by counsel who con-
tended against the marriage, says: “I
gather that, notwithstanding the nat-
ure of the original connection there,
had there afterwards grown up a gen-
eral reputation that the parties had
become man and wife, they (the
court) would have been of the opinion
that the evidence would have estab-
lished the presumption of a subse-
quent marriage.”
Campbell v. Campbell (Breadal-
bane's Case) was decided in 1867. In
1876 the House of Lords decided De
Thoren v. Attorney-General, L. R. 1
App. Cas, 686. There one Wall and
Sarah Ogg celebrated a ceremonious
marriage, invalid because of an exist-
ing impediment, which was after-
wards removed, both parties suppos-
ing there was no impediment. Lord
Chelmsford delivered the unanimous
opinion, and in it he said: “The ques-
tion to be determined is whether there
was a consent to a marriage between
Williams Ellis Wall and Sarah Ogg,
evidenced by habit and repute, prior
to the birth. Of the elder of their sons.
If there were no other question than
this in the case, there would be no
difficulty in giving an answer in the
affirmative. But the appellant, al-
though he admits that there had been
such cohabitation of the parties as
husband and wife as in ordinary case
would have conclusively established
the presumption of a marriage by
consent, yet contends that the cir-
cumstance of a previous ceremony
of marriage having taken place be-
tween the parties which was invalid,
though unknown to them to be so,
§ 543.] I)OMESTIC RELATIONS. 651
The distinction is radical. The one gives matrimonial effect
to matrimonial conduct wherever there is no impediment, and
imposes the condition of marriage unless there is proof of mere-
tricious association. The other opposes the policy of the law
to infer marriage wherever circumstances will admit, and con-
tinues the illegal character irrespective of the conduct and ap-
parent desire of the parties, no matter how innocent they may be.
SEC. 543. Proof of Marriage—Presumptions.—The proof of
marriage is in most cases nothing more than the application of
a set of presumptions. The performance of a ceremony, no
matter how solemnly or publicly it takes place, amounts only
to prima facie evidence of a marriage," because it is always open
to be rebutted by proof of non-consent on the ground that it was
a mere jest, that either of the parties was unable to consent, was
forced to consent, or that the consent was unreal because of mis-
take or fraud or duress.”
prevented that presumption. The
ground of this argument is that the
living together of the parties as hus-
band and wife must be attributed to
the invalid ceremony, and, therefore,
that the habit and repute could not
be evidence of any other consent.”
By the unanimous judgment of the
House of Lords it was decided:
“1. That the subsequent cohabita-
tion and reputation were not to be
referred to the inefficient ceremony,
even though the parties did not know
of the removal of the impediment to
their original marriage.
“2. Where parties are cohabiting
matrimonially, but unlawfully, be-
cause of an impediment to their mar-
riage, matrimonial consent must be
presumed to have been interchanged
assoon as the parties were enabled, by
the removal of the impediment, to
enter into the contract.
“3. The ceremony, although in-
valid, was a consent by the parties
to a cohabitation which was matri-
monial in character, and their subse-
quent cohabitation was proof of a
continuing consent thereto.” See dis-
senting opinion of Garrison, J., Voor-
hees v. Voorhees, 20 Atl. Rep. 676.
The case of De Thoren v. Attorney-
General is precisely in accord with
the decision in Stein v. Stein, 66 Ill.
App. 526, and Cartwright v. McGown,
121 Ill. at p. 504, is also in accord. It
is believed that the reasoning in all
the cases denying the presumption
after the removal of the impediment
is erroneous because directed to a
wrong conception of the fact in
issue. -
1 In Cartwright v. McGown, supra,
it is said that where a celebration is
Once shown, the contract, the capac-
ity and validity, in the absence of
proof to the contrary, will be pre-
Sumed. -
2 Clark v. Field, 13 Vt. 460; Hutch-
ins v. Kimmell, 31 Mich. 126; Jack-
son v. Winne, 7 Wend. 47. In Aymer
v. Roff, 4 Johns. Ch. 343, a girl of
twelve years alleged that she did not
understand the nature of the cere-
mony, and her alleged husband was re-
strained from all association with her
till the question of her understand-
ing could be ascertained. “Mere
words without any intention corre-
sponding to them will not make a
marriage or any other civil contract.
But the words are the evidence of
652 DOMIESTIC RELATIONS. [$ 543.
The same is true of a written statement of an agreement
de present to take each other as husband and wife." -
Where the only proof in the case is of continuous cohabita-
tion, the presumption is that it was lawful.” -
Where to this proof is added some affirmative proof of hold-
ing themselves out as husband and wife, it adds so much to the
force of the presumption, and length of time strengthens the
probative force of the presumption.”
This presumption of marriage from connubial habit is one
of the strongest known to the law, and is to be repelled only
by clear evidence.”
Evidence of repute — that is, the reputation of the parties
among their acquaintances as to whether they are man and
wife—is always admissible, and such proof strengthens the
force of the presumption from connubial habit.”
Where the inception is illegal or illicit, the ordinary presump-
tion of continuance applies until there is a change in the cir-
cumstances, but a very slight change will be seized hold of in
order to presume the marriage." *
Where an actual ceremony or an actual contract per verba de
present is shown, the burden of proof is upon the party attack-
ing the marriage to show its invalidity, and every presumption
will be indulged to uphold it."
such intention, and if once exchanged
it must be clearly shown that both
parties intended and understood that
they were not to have effect. . . .
Marriage itself is a proceeding in rem,
and constitutes the parties man and
wife; divorce is also — it dissolves
an existing marriage.” McClurg v.
Merry, 21 N. J. Eq. 225.
1 Carey v. Hulett, 66 Minn. 327.
2 Bishop on Mar. & Div., ch.8; Myatt
v. Myatt, 44 Ill. 473; Elzas v. Elzas,
171 iCl, 632.
8 Cunningham v. Cunningham, 2
Dow, 482; Johnson v. Johnson, 114
Ill. 611; Elzas v. Elzas, supra.
4 Hynes v. McDermott, 91 N. Y.451.
5 De Thoren v. Attorney-General, 1
App. Cas. L. R. 686; Hynes v. Mc-
Dermott, supra. Such repute need
not date from the first copulation.
A divided repute may weaken the
strength of the evidence of reputa-
tion (Bishop, Mar. & Div., sec. 936);
but it depends upon circumstances,
and it is not properly a divided re-
pute where the repute is different in
different localities. Gall v. Gall, 114
N. Y. 109.
6 Campbell v. Campbell (Breadal-
bane's Case), 1 Law Rep. Scotch and
Div. 182. The lord chancellor there
held that the change need not be in
the conduct of the parties, but a
change in the conditions. For ex-
ample, removal of impediment by
death or divorce or change in repute
would warrant a presumption of
marriage. -
7 There is no conflict on this point.
Cartwright v. McGown, Supra; Flem-
ing v. People, 27 N. Y. 329.
§ 544.] DOMESTIC RELATIONS. 653
SEC. 544. Conduct as Evidence of Marriage.—In the search
for, and production of, evidence to sustain the affirmative of a
disputed issue of marriage, or to negative the issue, it seems
that no part of the transaction, however solemn or however
trifling, but falls within the designation conduct. Every word
and act tends to prove or disprove the essential state of mind
called “consent.” However, the courts have differed as to the
nature of marriage; no court has directly held that in theory
even there must be actual words used to contract. On the con-
trary, all seem to agree that words are not under all circum-
stances necessary, but that it is sufficient if the parties, by
conduct mutually understood, or in any way, indicate their in-
tention to accept each other as husband and wife." Even in
the case of a common-law marriage, it is not always necessary
to show cohabitation following the agreement; that is, if the
agreement de present? is clearly shown, marriage results. Co-
habitation and repute are distinct means of proof.” The per-
formance of a ceremony is conduct powerfully probative of the
essential intent, but not conclusively so. Even the words there
spoken, the bowing of the head in assent, are nothing more nor
less than declarations or acts—parts of the res gestab. Hold-
ing each other out in public as man and wife, by appearing as
such publicly, or introductions, are mere declarations.” And
it is because of such conduct that repute, or matrimonial habit,
as it is sometimes called, is allowed to be shown; that is, al-
lowing the apparent anomaly of proof of how friends, neigh-
bors, relatives and acquaintances regarded the parties," because
it is connected with the conduct of the parties; but it is plain
that if the most solemn act cannot be conclusive, then the in-
troduction by one or the other, or causing it be understood in
the neighborhood that they are husband and wife, is not con-
clusive, but it may still be shown that the cohabitation is mere-
tricious, and that the public conduct is merely for the purpose of
deception, or arises from any motive, such as a desire to avoid
1 Bishop, Mar. & Div., sec. 229; requires that in ordinary cases no
Teter v. Teter, 101 Ind. 129. hearsay evidence or declarations of
2 Casey v. Hulett, 66 Minn. 327. third parties not in the presence of
*Port v. Port, 70 Ill. 484. the parties can affect them. This
*This would seem to contravene , rule must be examined as a part of
the maxim res inter alios acto, which the subject of evidence.
654 DOMESTIC RELATIONS. [$ 545.
criminal punishment or inconvenience." Again, conduct mili-
tating against the marriage relation, such as an agreement be-
tween the parties to a clandestine or a common-law marriage
to keep the matter secret, and a performance of this agreement
by denial of the marriage, is not conclusive against the issue.”
Indeed, it has been held that where the parties, who had lived to-
gether several years in apparent connubial constancy, separated,
and the wife married another man, who sued to annul on the
ground of this first marriage, the declarations of both could not
outweigh their conduct and repute.” A multitude of circum-
stances may exist in a single case making for or against mar-
riage; but it is sufficient here to emphasize the importance of
regarding every act and transaction within the res gestab as a
part of conduct indicating the intention to assume the marriage
status, or tending to show the contrary, and that in weighing
the evidence after it is allin, the doctrine of presumption plays
an important part.”
SEC. 545. Dissolution—Annulment of Marriage.— Once the
nature of marriage and the manner of compassing it are under-
stood, it is quite clear that it is beyond the power of the par-
ties, without the interposition of the law, to remove the bonds
of matrimony and change their status.
1 Port v. Port, 70 Ill. 484, citing
Becking's Appeal, 2 Brews. (Pa.) 202.
In Port v. Port the court quite
clearly show that it is not always
what the parties say that must de-
termine, but that all of the facts,
circumstances, words and conduct
must be weighed. In that case they
say: “The conduct of Port in intro-
ducing appellant as and calling her
his wife, when considered in connec-
tion with other evidence, proves
merely a desire to avoid the odium
and danger to which they would
have been exposed if the truth had
been known, and hence does not im-
pair the force of the other testimony,
direct and conclusive as it is in its
nature.”
2 Bishop, M. & D., secs. 252, 488;
Laurence v. Laurence, 164 Ill. 370; .
Carey v. Hulett, 66 Minn. 327.
3 Stevens v. Stevens, 38 Atl. Rep.
460.
4 Amte, Sec. 543. The court in the
opinion in Port v. Port, 70 Ill. 484,490,
referring to the urgency of counsel
and the citation of cases where an
invalid ceremony had been per-
formed, says there is this distinction
between the present case and those
referred to by counsel where it was
held that the fact that the parties
had doubts as to the validity of the
marriage did not prejudice her rights:
in those cases something had beenv
dome intended as a marriage. This
seems to be the keynote of the in-
quiry: Was what was done intended
as a marriage; not simply intended,
but were the acts indicative of that
intent.
§ 546.] T}OMESTIC RELATIONS.
655,
It will be equally clear that there is a plain distinction, both
in the nature of the proceeding and its effect upon the rights
of the parties, as to the nature of dissolving the bonds or de-
claring them severed. A marriage absolutely void in its incep-
tion cannot be made the grounds of a defense or the basis of
any right whatever." But it is equally plain that an apparent
relation of that kind may be so great and annoying and incon-
venient that the law should afford some means of publicly evi-
dencing its invalidity.” Hence it has uniformly been held that
in America the court of equity may cancel and set aside a void
marriage.” Likewise a pretended marriage, or a seeming mar-
riage, may be set aside on the ground of fraud, or mistake, or
duress, or any of the grounds which entitle the parties to annul
the marriage from the beginning. Lack of capacity, duress
and mistake are easily understood as grounds for annulling mar-
riage. But what is the fraud which constitutes such grounds
is more difficult. It is sometimes claimed that there is a tacit
representation that the female is chaste, and, if she has never
been married, is a virgin; but this is not the rule.* Men are
not allowed to contract this relation without inquiry and then
annul the marriage because of subsequent discoveries. In fact
it is doubtful if deceit in reference to conduct prior to the
marriage is ground for annulment, the better view being that
it is not." But deception of this nature as to a material fact,
e.g., the condition as to pregnancy or present chastity, is mate-
rial, and the marriage may be set aside because of such false
representations as to that. If the complaining party knows of
lewdness, he cannot complain; or if he has grounds for be-
lief of such a condition, he must inquire, and inasmuch as he
chooses to deal in the imperfect, he cannot afterward have
relief because it was worse than he supposed."
SEC. 546. Legislative Divorces.—Divorce is the sundering of
the bonds of matrimony rather than annulling the marriage.
1 Cartwright v. McGown, 121 Ill.
388.
2Wightman v. Wightman, 4 Johns,
Ch. 343; ante, p. 638, note 3.
8Td.; Reynolds v. Reynolds, 3 Allen,
606; Long v. Long, 77 N. C. 308; Cur-
rie v. Currie, 24 N. J. Eq. 522.
* Reynolds v. Reynolds, supra.
Where a woman concealed the birth
of a bastard child, the court refused
to set aside the marriage. Smith v.
Smith, 8 Oreg. 100.
5 Carris v. Carris, 24 N. J. Eq. 516.
6 Long v. Long, 77 N. C. 308; Steele
v. Steele, 96 Ky. 382.
656 IDOMESTIC RELATIONS.
[$ 547.
It proceeds upon the ground that there is a valid marriage.
It has been generally held that, unless some express limitation
appears in the state constitution, it is within the power of the
legislature to grant divorce; and while the practice finds no
favor at the present time, the power may exist in some states,
and it cannot be said that under no circumstances is it unjustifi-
able." The practice is so infrequent as to require no further
notice than to suggest that in a great emergency the relief
might be sought in legislation. ."
SEC. 547. Judicial Divorce.—The ordinary method of dis-
solving the bonds of matrimony is by judicial proceeding on
the equity side of the court.” It is obvious that there are
causes of divorce which consist in conduct naturally incompat-
ible with the marriage agreement, and which must be consid-
ered violative of it, or incapacities unknown to one or both of
the parties, and it would seem entirely consistent with religious
sentiment and secular policy that divorce should be granted on
these grounds.
Adultery is the most direct violation of a Christian marriage,
while impotency absolutely prevents the consummation of mar-
riage.” -
Cruelty is a relative term, and it follows that certain degrees
of violence which would be considered highly oppressive and
brutal by certain persons might not be deemed so by others;
but a very common statutory ground for divorce is extreme and
repeated cruelty, or cruel and inhuman treatment.”
1 Maynard v. Hill, 125 U. S. 190. At tices is within the rule. See Grif-
an early day in New York, while it
was a colony, the governor in coun-
cil exercised the power. Burtis v.
Burtis, Hopk. Ch. 557. Cf. Bingham
v. Miller, 17 Ohio, 445.
*It is preferable to treat the ques-
tion of jurisdiction with the subject
of equity jurisdiction and procedure.
See Barrere v. Barrere, 4 Johns. Ch.
187; Burtis v. Burtis, Hopk. Ch. 557.
3 It is ordinarily contemplated that
the impotency shall be natural or in-
curable, and that it existed at the
time of marriage; but this does not
require congenital incapacity, but
impotence resulting from evil prac-
fith v. Griffith, 162 Ill. 368, and cases;
1 Bishop, M. & D. (5th ed.), sec. 332.
The English common law required
cohabitation for three years, after
which the impotence and incurabil-
ity are deemed proven. Id.
4 As a rule, a single act of violence
or cruelty will not constitute suffi-
cient ground for divorce, but an act
accompanied with prior or subse-
quent conduct indicating the intent
to persist in outraging the feeling of
the complaining party, and of such a
character as if persisted in will mate-
rially affect the health of the abused
party, should be sufficient, even under
§ 547.] DOMESTIC RELATIONS. 657
Desertion or abandonment is a reasonable and natural ground
for granting a divorce. Ordinarily it is usual to provide that
the desertion shall extend over a considerable period of time,
sufficient to indicate a settled intention to abandon.'
It is not uncommon to allow divorce for conviction of in-
famous crimes. - \
In addition to these ordinary causes, the statutes may pro-
vide for, and the courts recognize, other grounds.
It does not follow that, because the statutes are settled law
as evidenced by decisions of the state declaring that certain
conduct shall be ground for a divorce, a divorce must always
be granted if the circumstances presented have existed; that is,
the conduct of the complaining party may warrant a refusal to
grant a divorce; where, for example, adultery is committed
with the acquiescence or connivance of the complaining party,
or where the evidence complained of has been condoned, or
where the complaining party is likewise guilty of the same of.
fense, or One of a similar kind or grade. In such cases the
divorce may be refused because of the connivance or fault.
a statute requiring eactreme and re-
peated cruelty. Fizette v. Fizette, 116
Ill. 328; Palmer v. Palmer, 45 Mich.
150. It is not for the courts to add
new grounds or extend the nature of
them beyond the intention of the
statute, and hence the courts are not
subject to criticism for seeming nar-
rowness. See Sharp v. Sharp, 116 Ill.
307. The statutes of some states pro-
wide for divorce on account of cruelty,
whether by personal violence or other-
wise. This provides for those cases
of refined cruelty whereby the weak
may torture the strong, or the cruelty
may be inflicted without resort to
physical violence. Charges of unchas-
tity (Walton v. Walton (Neb.), 17 N.
W. Rep. 392; Bahn v. Bahn, 62 Tex.
518), denial of paternity (Driver v.
Driver (Ind.), 40 N. E. Rep. 401), charg-
ing wife with incapacity to consum-
mate the marriage (Berdolt v. Ber-
dolt, 77 N. W. Rep. 399), unkindness
while ill known to be injurious, and
intercourse communicating disease
(Morehouse v. Morehouse, 70 Conn.
420), are examples of cruelty without
physical violence.
1 In the absence of express words in
a statute, an abandonment, even
though support is continued, is deser-
tion. Elzas v. Elzas, 171 III. 362. If
the statute requires desertion and
neglect to support, both elements
should combine. Stewart v. Stewart,
78 Me. 548. Persistent refusal to
have sexual intercourse, unless for
valid reasons, even if continued for
a period equaling the statutory period
of desertion, has been held not to
constitute desertion, and this seems
to be the weight of authority. Segel-
baum v. Segelbaum, 39 Minn. 258;
Fritz v. Fritz, 138 Ill. 436. These de-
cisions are based upon a long line of
authority without any real dissent.
The whole subject may readily be
tried by the citations afforded in
these cases.
42
658 DOMESTIC RELATIONS. [$$ 548–550.
SEC. 548. Divorce, Classes of:-A legal separation may be
decreed by the court, and the offending party compelled to per-
form certain of the marital duties, without granting complete
divorce. A judicial decree completely severing the marriage
tie, Or, as it is termed, a vinculo matrimon?', extinguishes en-
tirely the marriage relation and changes the status of the par-
ties." A separation from bed and board, or, as it is termed in
some jurisdictions, divorce a memsa et thoro, does not dissolve
the marriage tie, but compels the offending party to observe
the relations of marriage and at the same time live separate
and apart from the complaining party.” The complaining party
is, in the vast majority of cases where separation from bed and
board is asked, the wife; but it cannot be said at this time that
under no circumstances would the court grant a separate main-
tenance to the husband.
SEC. 549. Condonation.—Condonation is the forgiveness of
an offense which would otherwise constitute ground for divorce.
The better doctrine at the present time is that the condona-
tion is conditional, not only that there shall be no recrimina-
tion of the specific act, but that there shall be no transgression
of the marital rights and duties of any other kind which would
justify divorce or separation; and it follows that if an act
which would constitute a ground for divorce is condoned and
the party persist in the abuse or violation, it revives the original
act.”
SEC. 550. Recrimination is a defense by way of retort that
the complaining party has himself been guilty of some act
which is a defense to the divorce. While it is not always nec-
essary that recrimination should be of precisely the same kind,
it must equal in grade the offense charged in the bill.
For example, desertion and cruelty, which are themselves
1 Cole v. Cole, 142 Ill. 19.
2 These separations are so termed
in New York. Barrere v. Barrere, 4
Johns. Ch. 187, and note; T. Ed.
N. Y. Ch., vol. 1, p. 809; Van Voorhis
v. Brintnall, 86 N. Y. 18; 40 Am. Rep.
506. They are similar to the suits
for separate maintenance in other
states. The wife in such cases pro-
vides for her support by contract,
which is enforceable, or the courts of
equity are quite generally given full
power to compel the husband to main-
tain her by paying alimony to her.
These matters are regulated by stat-
ute.
8 Hoffmire v. Hoffmire, 3 Edw. Ch.
173; 7 Paige, 60; Davis v. Davis, 19.
Ill. 384; Sharp v. Sharp, 116 id. 509;
Johnson v. Johnson, 14 Wend. 637.
§ 551.]
DOMESTIC RELATIONS 659
grounds for either a separate maintenance or divorce, do not
constitute a sufficient recriminatory defense to a bill charging
adultery." - •
SEC. 551. Interstate Divorces.—Marriage being a status, every
state assumes the right to declare and fix the status of its actual
residents; and in analogy to the doctrine universally recog-
nized, that a marriage valid where celebrated is valid every-
where, it is with equal unanimity adopted as a rule that a
divorce valid where granted will be recognized everywhere.”
The fundamental principle, then, which underlies the grant-
ing of divorces is that every state determines the status of its
residents. It follows as a corollary that no state has the power
to directly change the status of non-residents.”
There is no contrariety of opinion upon this question of the
power of the state over non-residents.” The state has no power
in any or all of its departments to affect the status of non-
residents, and a divorce granted where neither party is a bona
fide resident, or in favor of a party not a resident, is void ab-
solutely and may be ignored collaterally.”
It is now the accepted doctrine that a divorce may be granted
irrespective of where the marriage took place, and irrespective
also of the place where the offense which is made the ground
for the prayer for a divorce was committed."
1 Gordon v. Gordon, 141 Ill. 160;
Bast v. Bast, 82 id. 384; State v. Good-
enow, 65 Me. 32.
2 Pennoyer v. Neff, 95 U. S. 715;
Barrett v. Failing, 111 id. 523.
3 State v. Armington, 25 Minn. 29;
Thelan v. Thelan, 78 N. W. Rep. 108.
“To each state belongs the exclusive
Const. Lim. 400, and notes; Kerr v.
Kerr, 41 N. Y. 272; Hoffman v. Hoff.
man, 46 N. Y. 30; Hanover v. Turner,
14 Mass. 227.” State v. Armington,
25 Minn. 29.
4 “Now I understand the rule to
be that, to give the courts of any
state jurisdiction over the marriage
right and power of determining upon
the status of its resident and domi-
ciled citizens and subjects in respect
to the question of marriage and di-
vorce, and no other state nor its ju-
dicial tribunals can acquire any law-
ful jurisdiction to interfere in such
matters between any such subjects
when neither of them has become
boma fide domiciled within its limits;
and any judgment rendered by any
such tribunal under such circum-
stances is an absolute nullity. Dit-
son v. Ditson, 4 R. I. 93; Cooley,
relation between a husband and his
wife, one of the parties at least must
have a domicile within that state.
Some of the judicial decisions make
further requirements, but no court
has ever held that any less could be
demanded.” Cooley, J., in People v.
Dawell, 25 Mich. 247.
5 Brown on Jurisdiction, Sec. 75.
The fact of residence is essentially
jurisdictional. Thelan v. Thelan, 78
N. W. Rep. 108.
6 Brown on Jurisdiction, sec. 76;
Cheely v. Clayton, 110 U. S. 705.
660 DOMESTIC RELATIONS.
[$ 551.
It frequently happens that the parties to divorce proceedings
are residents of different states, and this is no obstacle to juris-
diction, provided the complaining party is a bona ſide resident
of the state where the proceedings are had."
The conflict of law which arises in these cases, and which is
embarrassing alike to students and lawyers, is as to the diver-
gent views upon the question whether a state having jurisdiction
of the complaining party may, by a valid decree of divorce,
affect the status of non-residents. -
In most of the states it is held that where, by a valid pro-
ceeding, the husband or wife is declared to be divorced, the
result is to cause the other party to be an unmarried person
wherever he may reside.”
The novice reading this for the first time will readily assent
to the view that one without a husband or wife is an unmarried
person. Strange, however, as it may seem, it has been held
and is insisted upon by a long and unbroken line of decisions.
in the state of New York that a divorce in a foreign state,
which is not the state of residence of defendant who resides in
New York, unless he appears and defends,” does not affect the
status of the resident of New York, but he is still considered
to be a married person, and this irrespective of any question
of fraud, but simply upon the ground that no state excepting
New York has any jurisdiction to affect the status of the cit-
izens of New York.
1 Dunham v. Dunham, 162 Ill. 589;
Baker v. People, 76 N. Y. 78. These
are among the most notable cases in
the books.
2 “Marriage, as understood among
civilized people, is the union of one
man with one woman, and if valid
where celebrated is valid every-
where; and it would seem to follow
from the ‘full faith and credit ’
clause of the constitution of the
TJnited States, and it ought to follow
as a matter of logic and from the
comity of states, that where that
union is lawfully dissolved in one
jurisdiction where one of the parties
is in good faith domiciled, and in
honest compliance with its laws, it
should be treated as dissolved every-
where (1 Nelson on Divorce and Sep.
65).” Dunham v. Dunham, 162 Ill.
588–607.
3In Re Kimball, 155 N. Y. 62, a let-
ter sent as an appearance was held
not to be sufficient appearance.
4 All the courts hold that fraud
in obtaining jurisdiction invalidates
the decree. Thurston v. Thurston,
58 Minn. 279; Dunham v. Dunham,
162 Ill., 589,
5 Baker v. People, 76 N. Y. 78. In
this case Baker's wife obtained a di-
vorce from him in a foreign state, he
not appearing; he subsequently mar-
ried and was prosecuted for bigamy.
The court held, irrespective of the
§ 551.] I)OMESTIC RELATIONS. 661.
The New York courts, however, do not insist upon what
would seem to be a necessary corollary from their position,
namely, that the voluntary appearance of both in a foreign
state without bona fide residence will not give jurisdiction, and
they allow the foreign state to affect the status of both parties
where both parties appear." -
The numberless decisions to be found in our reports pre-
sent a hopeless maze, unless the underlying principles are kept
clearly in view. Perhaps the clearest idea may be given by
presenting in contrast the conflicting views and policy repre-
sented by the state of New York, and the reasoning of the su-
preme court of Illinois, which represents clearly the opposing
and, as the author believes, the more reasonable position.
Up to a certain point the reasoning of the courts of Illinois
and New York is alike, both courts agreeing that the condition
of marriage is a status, and that every state has the right to ad-
judge the status of its own citizens, and each admits that one
state cannot directly adjudicate the status of persons not citi-
zens or domiciled within its jurisdiction.
The New York court, however, insists that a decree of an-
other state which declares a woman no longer the wife of B.,
a citizen of New York, may affect her singly, but cannot affect
his status, and leaves him a married man.”
fact that she was divorced, that he
was not, and convicted him. See
Jones v. Jones, 108 N. Y. 415; Will-
iams v. Williams, 130 id. 193; In re
De Garman's Estate, 86 Hun, 390; 33
N. Y. Supp. 502.
1 Hunt v. Hunt, supra. In this case
the husband and wife were origi-
nally domiciled in Louisiana; she
left him without good cause and
hence did not acquire a new domi-
cile; he sued her in Louisiana, gave
constructive notice, and she appeared
and defended in a subsequent suit
by her. The New York court held
she was bound by the Louisiana de-
cree. This case is not contrary in
decision to any other. See De Meli
v. De Meli, 120 N. Y. 485.
* It is submitted that the reasoning
upon which the New York doctrine
is based is superficial, the logic poor,
the policy unwise. Other courts like-
wise hold that each state controls
the status of its citizens, but those
dissenting from the New York doc-
trine add that if one state says its
citizen is no longer the husband or
wife of an individual, he no longer
has a wife, and because not having a
wife he is single. The New York rule
says he is married although he has
no wife or husband living. The one
reasoning gives full faith and credit
to the decrees of every other state.
This reasoning tends to harmony, Se-
curity and honesty; the other to con-
flict, insecurity, danger and fraud.
The one includes every element which
may properly be said to constitute
an element in the problem; the other
ignores a most essential one, viz.:
that a consort is essential to the mar-
ried state.
.662 DOMESTIC RELATIONS. [$$ 552, 553.
Here, however, the point of divergence begins, and it is sub-
mitted that the learned court of New York Omitted an im-
portant element in the equation, which the court of Illinois
properly regarded as of the utmost importance, namely, that,
in order to be married, one must have a wife or husband; and
while admitting that it is true that the court of one state could
not directly affect the status of a non-resident, not a citizen,
nevertheless it may indirectly arrive at the same result by tak-
ing away an essential element of that status by acting upon an
essential part of the corporate duality located within its juris-
diction, holding that a valid decree that the husband or wife
within its jurisdiction is no longer the husband or wife of the
non-resident removes the necessary concomitant of the mar-
ried state, namely, the consort. -
SEC. 552. Interstate Divorce—I)omicile of Wife.—The gen-
eral rule is that the domicile of the wife follows that of the
husband; but to this rule there is a well-understood exception,
that, where the conduct of the husband is such as to justify
a separation, she may obtain a separate domicile, and conse-
Quently it is universally held that the wife may have a separate
domicile for the purposes of divorce. It is only upon this rea-
soning that the wife could ever acquire a bona fide residence in
another state than that of her husband, and but for this rule
the husband might so constantly change her domicile as to pre-
vent her residing a sufficient length of time in a state to pro-
cure a divorce."
SEC. 553. Effect of Divorce — Alimony.— Unless otherwise
provided by local law, a decree of divorce by a court having
jurisdiction of the cause and of the parties, dissolving the bond
of matrimony, puts an end to all obligations of either party to
the other, and to the right which either has acquired by the
marriage in the other's property,” except so far as the court
granting the divorce, in the exercise of an authority vested in
1 Barrett v. Failing, 111 U. S. 523;
Hunt v. Hunt, 72 N. Y. 217.
* “Accordingly it has been gener-
ally held that a valid divorce from
the bond of matrimony, for the fault
of either party, cuts off the wife's
right of dower, and the husband's
tenancy by the curtesy, unless ex-
pressly or impliedly preserved by
statute.” Barrett v. Failing, 111 U. S.
523.
A divorce forfeits the rights of the
offending party conferred by an ante-
nuptial contract or jointure. Jordan
v. Clark, 81 Ill. 466; Clarke v. Lott,
11 Ill. 105.
§ 554.] DOMESTIC RELATIONS. 663
it by the legislature, orders property to be transferred or ali-
mony to be paid by one party to the other.”
Alimony is an allowance for the support of the wife. In es-
timating and awarding the amount of alimony or property to
be so paid or transferred, the court of divorce takes into con-
sideration all the circumstances of the case, including the prop-
erty and means of support of either party, all of the property
of both being within the control of the court; and the order
operates in personam, by compelling the defendant to pay the
alimony or to convey the property accordingly, and does not of
itself transfer any title in real estate, unless allowed that effect
by the law of the place in which the real estate is situated.”
SEC. 554. Ante-nuptial Contracts.-In England, where greater
care is taken in reference to the disposal of estates and more
prudence in reference to marriage alliances than is common in
America, except possibly in cases where titled foreigners marry
American heiresses, it was quite common, before the celebra-
tion of marriage, for persons to make provision one for the
other, or either for the other.
A marriage settlement entered into in good faith without
a specific design to hinder and delay creditors is valid as a
transfer of the husband’s property, even as against existing
creditors, if they had no lien; and this was true whether the
wife was aware of the indebtedness or not. In order to make
1 Alimony may be granted on proof
of a common-law marriage, and evi-
dence of reputation, i. e., that the
parties are reputed to be husbarid
and wife, is admitted. See Purcell
v. Purcell, 4 Hen. & M. 511; Jenkins
v. Bisbee, 1 Edw. Ch. 377; vol. 6,
Lawy. Ed. N. Y. Ch. 178; Wilson v.
Wilson, 49 Iowa, 544; Vreeland v.
Vreeland, 18 N. J. Eq. 43; Brinkley
v. Brinkley, 50 N. Y. 193; Bowman
v. Bowman, 24 Ill. App. 165.
2 Equity may order the income of
trust fund for defendant’s use to be
applied on alimony due her. See
Wetmore v. Wetmore, 149 N. Y. 520;
‘Clinton v. Clinton, L. R. 1 Prob. &
Div. 215; Watkyns v. Watkyns, 2
Atk. 96; Head v. Head, 3 id. 295.
* Barrett v. Failing, 111 U. S. 525.
See also Barber v. Root, 10 Mass. 260;
Hood v. Hood, 110 id. 463; Rice v.
Lumley, 10 Ohio, 596; Lamkin v.
Enapp, 20 Ohio St. 545; Gould v.
Crow, 57 Mo. 200; 4 Kent, Com. 54.
The same result follows a valid de-
cree of a foreign state. Thoms v.
Eing, 95 Tenn. 60. Where a bill is
brought where plaintiff resides, lands
of defendant, brought within the ju-
risdiction by averments in the peti-
tion, may be awarded as alimony,
though they lie in another county.
The court has power to award land
as alimony on constructive notice to
defendant, where such award is
asked in the bill, and the publica-
tion notice contains a description of
the land. Wesner v. O’Brien, 56 Kan.
724.
664 potestic Relations. [$ 555.
such a contract invalid, it was essential that the wife participate
in the intent to defraud." . -
One may make a valid ante-nuptial contract to dispose of his
property by will in a particular way.” The theory of the unity
of the persons of husband and wife, and the fact that the mar-
riage extinguished all contracts and debts between them, is not
extended to ante-nuptial contracts, and these are enforced by
courts of equity in favor of either party.
It is apparent that this contract, which is prior to and con-
temporaneous with marriage, always exists in some form, either
as an implied contract incident to the engagement and marriage
according to the law of the place, or as modified by express
provisions in reference to future property rights.
The rules which should govern such cases have been formu-
lated by Judge Story in his work on the Conflict of Laws. He
says: An express contract covering fully every point is gener-
ally admitted to govern all the property of the parties, not
Only in the matrimonial domicile but elsewhere.
Where there is no express contract, or none governing the
very point arising, the question is surrounded with much diffi-
culty. An express contract will generally govern movable
property everywhere, but can be allowed to affect immovable
property only in conformity with the law re; sitae.
Where an express contract applies in its terms only to prop-
erty then owned, and there is a change of domicile, the law of
the new domicile governs future acquisitions. Where there is
no express contract, the matrimonial domicile governs only
their present property so long as they remain there, but all per-
sonal property becomes governed by the law of their domicile
if changed. Where there is no change, such a contract applies
to future as well as to present property, unless expressly other-
wise provided.” - *
SEC. 555. Effect of Marriage on Status of Wife.—The theory
of English law, which is the starting point from which most of
the modern law departs, regarded the fact of marriage as merg-
1 Otis v. Spencer, 102 Ill. 622; Mc- approved and applied in Long v.
Gowan v. Hitt, 6 S. C. 602; 92 Am. Hess, 154 Ill. 482; Fuss v. Fuss, 24
Rep. 650. Wis. 256; Castro v. Illies, 22 Tex. 479.
2 Long v. Hess, 154 Ill. 4S2. The review of authorities in Long v.
*These views of Judge (3tory are Hess is late and exhaustive. •
§ 555.] DOMESTIC RELATIONs. - 665.
ing, in a certain sense, the personality of the wife into that of
the husband. -
Her existence, for all purposes, was not lost sight of, nor was
she completely within the control of the husband when she
changed her position from that of a child within her father's
family and control, or of a person Sui juris, if she was of age
and single, to a member of the family of her husband. The
hand of her sovereign was still with her, and, as in the case
of all other persons under disabilities, over and above her hus-
band stood the king as her protector, representing the law
of England, and she as well as all persons under any degree of
disability were considered as special wards of the king's court.
of chancery, which was always open to them by bill or petition;
and in this court she might have redress against her husband
or against third persons untrammeled by his control.” So that,
whatever her disabilities, the theory of the English law did not
place her completely within the power of her husband.
Mutual Contracts of Husband and Wife.—The theory that
their personalities became blended, and that the husband be-
came dignior persona, the person of greatest power and dignity,
upon whom rested the responsibilities of a family,and in whom
resided the control, created an inequality which, in general,
amounted to a disability existing between the parties to con-
tract with each other, and so they could not buy or sell from
each other.”
In perfect accord with this theory was the wife's entire dis-
ability to contract with third persons, because she could make
no contract which did not affect her person or her property,
both of which were within her husband’s control. -
There are, however, two important exceptions. If the hus-
band departed the realm or was outlawed, so that in a sense
he became civilly dead, the wife was allowed to engage in
trade and to contract. -
If he deserted her and neglected or refused support, her con-
tracts for necessaries became binding upon him, and were valid
against herself.” -
1 See In re Burres, 136 U.S. 604, 8This disability was not complete.
*Spence, Eq. 595; Drake v. Storr, 2 See Shepard v. Shepard, 7 Johns. Ch.
Freem. 205; Martin v. Fitzgibbon, 17 57; Book 2, Lawy. Ed., p. 219, note;
Ch. D. 454; Rupp v. Meier, 33 Gratt. Randall v. Randall, 37 Mich. 563.
97. , - 4 Arthur v. Broadnax, 3 Ala. 557;
666
[$ 555.
DOMESTIC RELATIONS.
Effect of Marriage on Property."—The wife's personal prop-
erty, whether chattels or choses in possession or in action, be-
came the husband's, with the exception of certain articles of
personal adornment and convenience, which passed under the
name of “paraphernalia.” These she might own, enjoy and
dispose of.”
37 Am. Dec. 707; Love v. Moyneham,
16 Ill. 277; 63 Am. Dec. 603 (1855);
Wright v. Hayes, 10 Tex. 130; 60 Am.
Dec. 200 (1853).
case, said that the rigor of the law
as to the rights of the wife are greatly
relaxed, and now it is the general
rule that if a wife is deserted, or if
the husband leaves the state, or is
civiliter mortuus, she may contract,
sue and be sued as a femve sole. Greg-
•ory v. Paul, 15 Mass, 31; Starrett v.
Wynn, 17 S. & R. 130.
In addition to these general excep-
tions there were in England local cus-
toms which allowed a femme covert to
act as a sole trader. Of this custom
the South Carolina court said:
“The right of a feme covert, with
the consent of her husband, to carry
on a separate trade, is sanctioned by
the usage of the country and the cur-
rent of judicial decisions, and is evi-
dently derived from the custom of
London, and that custom, translated
from the liber albus in the town
clerk’s Office, is as follows: “When a
feme covert of a husband useth any
craft in the said city, on her sole ac-
count, whereof the husband med-
dleth nothing, such a woman shall
be charged as a feme sole, concern-
ing everything that toucheth the
craft, and if the husband and wife
be impleaded in such case, the wife
shall plead as a feme sole, and if she
is condemned, she shall be commit-
ted to prison until she has made Sat-
isfaction, and the husband and his
goods shall not, in such case, be
charged nor impeached.” Lavie et
al. v. Phillips et al., 3 Bur. 1776. This
custom, like all others which dero-
The court, in this
gate from the common law, is to be
taken strictly and not extenuated by
Construction, and it seems that if the
husband in any manner intermed-
dle or concern in the trade of the
wife, the case will not be protected
by the custom. He may, however,
determine his wife's trading in the
future, but not in retrospect; ‘nor
can he do any act to injure her credit-
Ors, who are entitled to be satisfied
Out of her property in trade; but
after those demands are satisfied he
may, by law, possess himself of the
Surplus of her property, for the cus-
tom does not extend to this point, it
regarding only trade and commerce.”
Langham v. Bewett, Cro. Car. 68;
Lavie v. Phillips, 3 Bur. 1782.
“In the incorporation of this cus-
tom into our system of jurisprudence,
it must be, in the absence of any
legislative enactments, judicial de-
cisions or general usage to the con-
trary, be understood as having been
adopted with all its restrictions and
limitations, as well as its privileges
and immunities; and in relation to
this case, it is only necessary to re-
fer to the limitation that it regards
trade and commerce only. The cases
of McGrath v. Robinson, 1 Eq. Rep.
445, and Miller v. Tollison, Harp. Eq.
Bep. 145, are relied on as showing
that the custom has been so extended
as to enable the wife to acquire a
separate property by other means
than that of trade and merchandise.”
McDaniel v. Cornwell, 1 Hill (S. C.),
429.
1 See last section, “Ante-nuptial
Contracts.”
2 Cooley, Blk. (3d ed.) 442, n.
§ 556.] DOMESTIC REI, ATIONS. 667
The effect of marriage upon the real estate of both will be
considered under “the means of acquiring interests in lands.”
If the wife were so fortunate as to have creditors when she
married, the husband became liable for her debts.
Neither was a wife in all respects a free gift without faults,
because upon the theory that every act of the wife was induced
or coerced by the husband, or performed with his consent, he
was liable for all her torts, although not punishable for all her
crimes; neither was she excused from her crimes except by
express proof of physical coercion.
SEC. 556. The Moderm Law.— The effect of the modern law
is not so much a modification of the common law as a subver-
sion of it.
The whole theory and foundation upon which the rules of
the common law are based are the unity of husband and wife,
his supremacy over her, his right to her property, his power to
guide and to guard, his obligation to support and protect.
These are all either entirely swept away or reduced to the
mildest form. He has no power to guide, though he still has
the right to protect and the obligation to maintain.” He is un-
1 Morgan v. Kennedy, 62 Minn. 348.
These rules have all been modified
by statutes, which preserve the iden-
tity of the wife and her power and
control over her own property. The
divergency of the views is excel-
lently stated in the case just cited.
Some Courts hold that the statutes
changing the rights, duties, powers
and obligations of married women,
wholly silent as to the removal of the
husband's liabilities, impliedly have
that effect. Martin v. Robson, 65 Ill.
129; Norris v. Corkill, 32 Kan. 409.
This conclusion is reached by apply-
ing the maxim, “The reason for the
law ceasing, the law itself ceases; ”
but generally there is something in
the statute which amounts to an im-
plication from the words used rather
than a resultant from the greater
right granted to the wife. The Min-
nesota Court says: “Again, the cur-
rent of authority is opposed to the
views expressed in these decisions,
even in jurisdictions where statutes
have been very sweeping, and have
completely emancipated the wife and
her property from the control or in-
terference of her husband. Without
elaborating we cite some of the cases:
Enowing v. Manley, 57 Barb. 479;
Eitzgerald v. Quann, 33 Hun, 652; af-
firmed, 109 N. Y. 441; Quick v. Miller,
103 Pa. St. 67; Choen v. Porter, 66 Ind.
195; Ferguson v. Brooks, 67 Me. 251;
McElfresh v. Kirkendall, 36 Iowa, 224;
Zeliff v. Jennings, 61 Tex. 458. See
also Seroka v. Kattenberg, 55 Law
J. Q. B. 375.” Morgan v. Kennedy,
62 Minn. 348.
2 Livingston v. Hammond, 162
Mass. 375. A very forcible expres-
Sion of the effect of these modern
statutes is given in Harman v. Old
Colony Ry. Co., 165 Mass. 100. There
a married woman sued for personal
injury, and it was held that impair-
668 I)OMESTIC RELATIONS.
[$ 557.
able to enforce his views, and powerless to protect her against
improvident bargains or the faults of third persons.
Since the married women’s acts have been passed, the whole
relation seems changed. The property which is in her posses-
sion is presumed to be hers." Her earnings are her own. The
unity of the husband and wife is entirely destroyed. They have
separate legal estates, separate contracts, debts, injuries, for
which she may sue. She need not join her husband in suits
for trespass to her person or property. She may even prose-
cute a suit against him for an unlawful interference with her
property.
Eor injuries to her person she may sue for her own benefit,
and he cannot release the damages. She may be sued at law
upon her contracts relating to her separate property. She may
now execute a valid lease of real estate without joining her
husband. This contrast is very strikingly made in the case re-
ferred to in the note.” -
SEC. 557. Married Woman’s Contracts — Timitations.—Not-
withstanding the sweeping effect of modern married woman’s
acts, her status as a married Woman still avails her to some
extent and precludes her from exercising certain powers.
ment of her power to labor and earn
was a damage to her. See Morgan
v. Kennedy, 62 Minn. 348.
1 The presumption at common law
followed the universal fact that, ex-
cept by some special ante-nuptial
agreement, all property held by both
belonged to him. Reeves v. Webster,
71 Ill. 308; Peters v. Fowler, 41 Barb.
467. This presumption was not al-
lowed in Pennsylvania, where she
sued a mere trespasser. Hoar v. Aix,
22 Pa. St. 381. In New York it is held
that the statute changes the pre-
sumption. Allen v. Cowan, 23 N. Y.
502. This presumption does not apply
against his creditors and as to prop-
erty acquired during coverture. As to
property obtained from him, see Seitz
v. Mitchell, 94 U. S. 580. The burden is
on her in such case to show the bona
Jides of the transaction.
2 Martin v. Robson, 65 Ill. 129. Mr.
Justice Thornton seems to view with
sadness the ruins of the past. He
says: “The ancient landmarks are
gone. The maxims and authorities
and adjudications of the past have
faded away. The foundations hith-
erto deemed so essential for the pres-
ervation of the nuptial contract, and
the maintenance of the marriage re-
lation, are crumbling. The unity of
husband and wife has been severed.
They are now distinct persons. . .
They are one in name, and are bound
by solemn contract, sanctioned by
both divine and human law, to mutual
respect; should be of the same house-
hold, and one in love and affection.
But a line has been drawn between
them, distinct and ineffaceable, ex-
cept by legislative power. His legal
supremacy is gone, and the sceptre
has departed from him.” Martin v.
Robson, Supra.
§ 558.] DOMESTIC REFLATIONS. . 669
Contracts between husband and wife which are against pub-
lic policy—for example, an agreement to separate or in con-
templation of future separation—are void. After separation
has actually taken place, a contract regulating their mode of life
and the division of property or means of support is valid.” Not
every contract which a married woman signs is prima facie
binding upon her separate estate. For example, if she signs a
note, it is presumed rather that she is acting for her husband,”
but it is open to proof that she intended to bind herself or her
property.” -
An agreement to do, for or on account of her husband, what
she is obliged to do by law is without consideration, or perhaps
void on the ground of public policy.” For example, notwith-
standing her right to employ all of her time in her own affairs,
an agreement by which she is to be paid for keeping house is
void; " or where she contracts with public officers to care for
her husband, who is sick or insane, she cannot recover on such
a contract." 3.
Third persons, however, have no right to treat the wife as
the agent of the husband without express authority, and she is
not authorized to collect his debts.”
SEC. 558. Her Interest in Her Husband.—It has been pointed
out that, on account of the disability caused by coverture, the
wife could not bring an action alone; and so at common law
she could have no redress against one who deprived her of her
husband's affections, or of the care which she had a right to
expect that he would give her. - .
A few states still adhere to the common-law rule and deny
the right of action.” -
In accordance, however, with the liberal tendency of modern
law in its treatment of married women, the wife is allowed to
maintain an action for the alienation of her husband's affections
1 Greenhood, Pub. Pol. 486; Walker. Bank v. Grosshaus (Neb.), 75 N. W.
v. Walker, 9 Wall. 743. Rep. 51. - + :
2 Randall v. Randall, 37 Mich. 563. 5 Mich. Trust Co. v. Chapin, 64 N.
3 The peculiar wording of statutes W. Rep. 334.
must affect this question. See Grand 6 Id.
I. B. Co. v. Wright (Neb.), 74 N. W. 7 Green v. Green, 41 Iowa, 88.
Rep. 82; Thompson v. Weller, 85 Ill. 8 Husche v. Sass, 67 Ill. App. 245.
200. 9 Doe v. Roe, 82 Me. 503; 8 L. R. A.
4 Stenger Benev. Ass'n v. Stenger 833; Morgan v. Martin, 42 Atl. Rep.
(Neb.), 74 N. W. Rep. 846; First Nat. 354; Duffies v. Duffies, 76 Wis. 374,
670 DOMESTIC RELATIONS. [$ 558.
and the consequent loss of his society, assistance and support.
The action in some states is based on the loss of the consortium,"
precisely as where an action is brought by the husband for
alienation of his wife's affections, and her right to recover is
held to flow from the general principle of law that, where there
is an injury and damage, there must be a remedy.”
In other states, however, the action is allowed on the ground
of the removal by statute of the disabilities of the wife.” These
cases, however, must not be looked upon as authority for the
right of a married woman to maintain an action against an-
other woman in the nature of crim. con.* The principles which
sustain these actions for alienating the affections of the hus-
band will not extend, however, to the support of an action for
seduction, such as the husband might at common law maintain.
A suit for alienating the affections is based upon and requires
1 That is to say, the society, com-
panionship, affection, assistance and
fidelity of the husband. Cross v.
Grant, 62 N. H. 675; 13 Am. St. Rep.
607.
2 Bennett v. Bennett, 116 N. Y. 584;
6 L. R. A. 553; Westlake v. Westlake,
34 Ohio St. 621; Fort v. Card, 58 Conn.
1; 6 L. R. A. 829. In Bennett v. Ben-
nett, supra, the court reasoned thus:
“His right to the conjugal Society of
his wife is no greater than her right
to the conjugal society of her hus-
band. Marriage gives each the same
right in that regard. Each is entitled
to the comfort, companionship and
affection of the other. The rights of
the one and the obligations of the
other spring from the marriage con-
tract, are mutual in character, and
attach to the husband as husband,
and to the wife as wife. Any inter-
ference with these rights, whether
Of the husband Or of the wife, is a vio-
lation, not only of a natural right, but
also of a legal right, arising out of
the marriage relation. It is a wrong-
ful interference with that, which the
law both confers and protects. A
remedy not provided by statute, but
springing from the flexibility of the
Common law, and its adaptability to
the changing nature of human af-
fairs, has long existed for the redress.
of the wrongs of the husband. As
the wrongs of the wife are the same
in principle, and are caused by acts
of the same nature as those of the
husband, the remedy should be the
Same.”
3 Cooley's Elem, of Torts, 81; Mehr-
off v. Mehroff, 26 Fed. Rep. 13; War-
ren v. Warren, 89 Mich. 123; 14 L. R.
A. 545; Holmes v. Holmes, 133 Ind.
386; Clow v. Chapman (Mo.), 26 L. R.
A. 412; Hodgkinson v. Hodgkinson.
(Neb.), 61 N. W. Rep. 577.
4 Kroessin v. Keller (Minn.), 62 N.
W. Rep. 438. The court in this case.
said there is, and invariably must be,
a marked distinction between an ac-
tion charging a defendant with hav-
ing induced and enticed the husband
to withdraw his support from his
wife, and to abandon and desert her,
and one similar to crim. con. See,
however, Seaver v. Adams, 66 N. H.
142, where it was held that an action
of this nature would lie, the court,
relying on Westlake v. Westlake, 34
Ohio St. 621, and other cases cited
above.
- § 559.] IDOMESTIC RELATIONS. 67f
proof of the withdrawal of support and association, but the
suit for seduction was based upon the trespass impliedly com-
mitted against the wife and her inability to consent. This
fiction has never been indulged as to the husband, and in the
nature of things such a presumption would rarely accord with
the fact.
The action must be allowed upon broader grounds, if at all;
but whatever palliation or excuse the male sex may offer because
of supposed enticement, the presumption of law no doubt ac-
cords with the actual fact that there is seldom such thing as
seduction of a man by a woman. The remedy in such cases is
divorce, separation and alimony against the husband.
SEC. 559. Parent and Child.—The relation of parent and
child is a natural one, and many of the rules in regard to the
rights and liabilities are based upon natural law, although cor-
roborated and controlled by the civil law.
In fact, in the eye of the law, the relation or status of parent
and child may be formed by the joint operation of the law and
the act of the parties by what is known as adoption.
The natural condition of a child is to have parents of both
sexes, but in the eye of the law children are those born in wed-
lock, or legitimate, those who become children by adoption,
and children born out of wedlock, who are regarded as nullius
filius, child of no one, so far as the ordinary and usual rights and
obligations of parent and child are affected.
Though a child be actually born in this unfortunate condi-
tion, there are several ways in which the disability may be re-
moved, the most natural one being the celebration of marriage
between the parents."
The legislative power of the state, unless restrained, has the
right to legitimatize children born out of wedlock, or the pro-
cess of adoption may place the child within the station either
as to his natural parents or others who may adopt him.”
1 In a number of states in this mated by act of parliament only. So
country, though not in England, in this country an act of the legisla-
marriage and subsequent recogni- ture, generally passed on the appli-
tion makes legitimate a child born cation of the father, will legitima-
of the parties before the marriage. tize. The effect of legitimation is to
Blackburn v. Crawford, 3 Wall. 175; confer on an illegitimate child the
Jones v. McNicoll, 12 Ohio St. Rep. status of one born in lawful wed-
302, 36 Ohio L. J. (No. 11). lock. McKamie v. Baskerville, 2 Pick.
*In England bastards can be legiti- (Tenn.) 249.
672 DOMESTIC RELATIONs. [$ 560.
Presumption of Zegitimacy.—The modern law presumes that
every child born in wedlock is legitimate. This presumption
may be overcome by proof showing conclusively that it is im-
possible that the husband is the father of the child."
Thus the presumption may be overcome by showing impo-
tence of the husband, or by proof of non-access. But evidence
to establish illegitimacy must be of such a character as to ex-
clude all doubt.” - - -
The presumption still holds though the parties are living
apart by mutual consent, though it is otherwise if there has
been a decree of divorce; and it cannot be rebutted by proof of
the wife's adultery while cohabiting with the husband.”
SEC. 560. Adoption.—Adoption is the process whereby one
person takes another into the same relation that would be oc-
cupied by a child born in marriage. In the United States pro-
ceedings by adoption are regulated by statute.” .
Generally speaking, a man having a wife is not allowed to
adopt a child without her consent, although the power of the
legislature in this respect is subject only to express limitation.
On the other hand, if the child has a parent or parents or
guardian, it is usual that the consent of both the parents, or, in
the absence of these, the consent of the guardian, should be ob-
tained, because the relation of parent and child is so sacred
1Formerly, by the English law, if
the husband was within the four
seas, i. e., within the realm, at any
time during pregnancy, the issue was
presumed to be legitimate. Rex v.
Murray, 1 Salk. 122. The presump-
tion extends not only to a child born
during the continuance of a valid
marriage, but also to a child born
within such time after the dissolu-
tion thereof that his mother's hus-
band could have been his father.
Reynolds’ Stephen's Law of Evidence
(3d ed.), 147. * - -
2 Head v. Head, 1 Sim. & Stu. 157;
Banbury Peerage Case, 1 Sim. & Stu.
150; Egbert v. Greenwalt, 44 Mich.
245; 38 Am. Rep. 260. The access here
spoken of is to be understood to be
such as gives an opportunity for
sexual intercourse. “Once the mar-
riage is proved, nothing shall be al-
lowed to impugn the legitimacy of
the issue short of the proof of facts
showing it to be impossible that the
husband could be the father. Access
is presumed unless the contrary be
plainly proved.” Patterson v. Gaines,
6 How. 588.
3 Hemmenway v. Towner, 1 Allen,
209.
4 In re Thorn’s Estate, 155 N. Y. 140.
It is sometimes said that adoption
is the conferring of the status of a
natural-born child upon the child of
another. That this definition is im-
perfect will be readily seen when it
is recalled that there is nothing to
prevent a man from adopting his il-
legitimate child. In re Gregory's Es
tate, 35 N. Y. Supp. 105. •
§ 561.] DOMESTIG RELATIONs. 673
that the right of either party ought not to be cut off without
the consent, or at least due process of law, by a hearing before
some competent tribunal."
When the child has reached such an age as in the eye of the
law enables it to express some intelligent choice, statutes usu-
ally provide for the consent of the child, but such choice is not
controlling.
The rights of parents in their children are not cut off by
divorce, nor by divorce awarding the custody to either, and
this does not excuse a compliance with the statute requiring
consent of parents, in the plural, to show the consent of the
parent to whom has been awarded the custody of the child.
The method of adoption is generally by a judicial proceeding
before some tribunal selected by the legislature, usually in a
court of record, and the procedure is by a petition in the first
instance praying the privilege of adoption, followed by a no-
tice to all the parties interested, and a decree or order of the
court spread upon the record that the child is adopted.
Rights of Adopted Child,— In many states the statutes regu-
lating the adoption confer on the adopted child all the rights
of a child by birth.” In other states, however, distinctions are
made, especially with regard to rights of succession on the
death of the adopting parent. Thus, in Illinois an adopted
child can inherit from the adopting parent only, and not from
lineal or collateral kindred of such parent.”
Rights of inheritance are acquired only by a substantial
compliance with the prescribed statutory formalities in the
ceremony of adoption,” and an adoption according to the laws
of one state will confer the right of inheriting lands in a sister
state.” The right to inherit is not destroyed by a second adop-
tion after the death of the first adopting parents."
SEC. 561. Parental Duty.—The law imposes upon the parents
the duties of protection, of maintenance, of education. Though
I Schiltz v. Roenitz, 86 Wis. 31. 5 Gray v. Holmes, 57 Kan, 217. Un-
2 In re Newman, 75 Cal., 213; 7 Am. less by the statutes of the former
St. Rep. 146; Markover v. Krauss, 132 state rights are conferred which are
Ind. 294; 17 L. R. A. 806. inconsistent with the laws of de-
8 Keegan v. Geraghty, 101 Ill. 26; scent in the latter. Keegan v. Ger-
Helms v. Elliott, 89 Tenn. 446; 10 L. aghty, supra.
R. A. 535. 6 Patterson v. Browning, 146 Ind.
4 Renz v. Drury, 57 Kan. 84. 160.
43
674. DOMESTIC RELATIONS. [$ 561.
a parent owes to the child the duty of protecting him from the
wrongful violence of others, the child has no remedy against
the parent for non-performance of this duty.”
The duty of the parent to support his child is an imperfect
obligation, since for its non-performance the child has no remedy
against the parent. The bonds of nature are relied on, being
in most cases sufficient to insure its performance; but in order
to provide for those unusual cases, and to enforce this obliga-
tion and prevent those who are unable to support themselves.
from being made a public charge, the law gives a remedy
against the parent in favor of one who furnishes the necessaries
of life, and for the neglect of this duty punishes the parent by
indictment; * and in some instances statutes have provided spe-
cial remedies against the parent.* -
The obligation of the father to support his child ceases by
the common law as soon as the child becomes of age. The
statute 43 Eliz., referred to in the note, had no application to
step-children. - -
If a minor child, voluntarily and without cause, abandons.
his home, the father is not liable for his care or support, the
duty of maintenance resting upon him only within the home
which he provides.”
A child born out of matrimony had, at common law, no claim.
upon the parent."
The father has no power over an illegitimate child, and can
be charged for his support only upon contract." By statute,
1 Amte, p. 611.
2 His only remedy is against the
person guilty of the wrongful act.
Rogers v. Smith, 17 Ind. 323; 70 Am.
T)ec. 483.
3 Fletcher v. People, 52 Ill. 395.
4 The first statute of this nature
was 43 Eliz., ch. 2, amended by 5 Geo.
I., ch. 8, which provided that the
father, mother, grandfather and
grandmother of poor, old, blind, lame
and impotent persons should main-
tain them; and it was provided that,
if a parent abandoned his children,
the municipal authorities might sell
his goods for their relief. The stat-
ute 43 Eliz, is regarded as part of the
common law of this country, but in.
many states its provisions have been
re-enacted. 1 Blk, 448.
5 Gotts v. Clark, 78 Ill. 229; Angel
v. McClellan, 16 Mass. 28.
6 Simmons v. Bull, 21 Ala. 501; 56
Am. Dec. 257. Illegitimate children,
known to the law as bastards, are
not regarded as children for civil pur-
poses. By the common law they can-
not inherit from the parents. Black-
lawn v. Milne, 82 Ill. 505; Stoltz v.
Doering, 112 Ill. 238; Brewer v.
Blougher, 14 Pet. 178. But, born or
unborn, they might be legatees or
devisees.
7 Marlett v. Wilson, 30 Ind. 240.
§ 562.] DOMESTIC RELATIONS. 675
however, in England and in most of the states of this country,
it is provided that the mother may enforce from the father suf-
ficient maintenance for the illegitimate child."
Duty to Educate Children.—The duty of the parent to pro-
wide an education for his children is regarded as a most impor-
tant one, and the breach of it is attended with serious conse-
Quences to the family and to the state. The child, however,
has no action against the parent to compel the performance of
this duty. It is presumed that the affection and anxiety which
the parent naturally feels for the future welfare of his offspring
will operate with sufficient influence to impel him to perform
this obligation. /
It has been held that, where a third person furnishes the child
with an education, with the father's knowledge and consent,
the latter is bound to reimburse such person for his outlay.”
Compulsory Education.— The right to an education at the
public expense is not a legal right unless made so by statute;
but in the exercise of its proper power as parens patriæ, in com-
pliance with acknowledged public policy, the states universally
provide schools which all can attend, and in most cases make
instruction free to all, and many states make attendance com-
pulsory upon all children of certain ages.” This is the common
or free-school system which has been heretofore considered.”
In England the law recognized the right of a father to have
his child educated in his own religion.” The theory of our in-
stitutions, however, precludes any interference in the matter
of religious instruction."
SEC. 562. Parental Right to Custody and Control.-The au-
thority and rights of the parent over his children are based upon
natural reasons, and result also from his duties." The father, at
1 Schouler, Dom. Rel. 385.
2 Thompson v. Dorsey, 4 Md. Ch.
149.
8 See Com. v. Roberts, 159 Mass.
372; State v. McCaffrey (Vt.), 37 Atl.
Rep. 234; People v. Ewer, 141 N. Y.
129.
4 Ante, Sec. 447.
5 Hawksworth v. Hawksworth, L.
B. 6 Ch. 539.
6 People v. Gates, 43 N. Y. 40. In
this case the mother of a female child
sought to have it removed from the
custody of the Shaker community.
It being conceded that the temporal
wants of the child were properly
cared for, and that she was being
educated in “ habits of industry, so-
briety and virtue,” the judge said
this was all the state could demand,
and refused the removal. See ante,
p. 629.
7 Osborne V. Allen, 26 N. J. L. 388.
676 - DOMESTIC RELATIONS. [$ 562.
common law, has the paramount right to the custody and control
of his minor children without regard to sex and with a slight
qualification as to those of very tender years. The right is not
absolute, however, and may be lost by abandonment, ill usage,
immoral habits, or inability to provide for his children."
During the father's life the authority of the mother remains
in abeyance, but on his death she succeeds to his rights over
the child.” -
The principal point to be considered by the courts, when the
question arises on habeas corpus proceedings or otherwise, as to
who shall have the custody of the child, is the welfare of the
child itself. In deciding this question, the age and sex of the
child and the character and surroundings of the parents will be
taken into consideration, as well as other circumstances of the
particular case which would have any bearing on the child’s
comfort and well-being.” -
Courts of equity have the authority, upon divorce proceed-
ings, to make such order for the care and custody of children
and their suitable maintenance during the pendency of the
suit, and, when the decree is granted, for their subsequent cus-
tody, as may be deemed proper and necessary. Some author-
ities hold that if a decree of divorce is rendered by which no
provision is made for the custody and support of the children,
the father's duties and obligations remain the same as before
divorce.* The mother, generally, is entitled to the custody of
an illegitimate child and is bound to maintain it.” .
It was formerly held that a man owed no duty to, and had
no right to exact services from, a child of his wife by a former
husband,” but there seems no reason why, when persons assume
the family relation, all the rights and liabilities of that relation
should not be held to be incident; and so it is the general rule
that if one receives infant step-children into his family, they
are, until they attain majority, in the position of children so
1 Ahrenfeldt v. Ahrenfeldt, Hoff. Jones v. Darnell, 103 Ind. 574; In the
Ch. 497; King v. Greenhill, 4 Ad. & Matter of Waldron, 13 Johns. 418;
El. 625. Mercein v. People, 25 Wend. 64;
2 Osborne v. Allen, supra; Ohio & Giles v. Giles, 30 Neb. 624.
Miss. R. R. Co. v. Tindell, 13 Ind. 366. 4 Cilly v. Cilly, 99 Mo. 292.
8 Sheers v. Stein, 75 Wis. 44; 5 L. R. 5 Freisner v. Symonds, 46 N. J. Eq.
A. 781; Sturtevant v. State, 3 Neb. 521.
463; Corrie v. Corrie, 42 Mich. 509; 6 Worcester v. Mordant, 14 Pick, 510.
§ 563.] IDOMESTIC RELATIONS.
677
far that they cannot claim compensation for services, or be re-
quired to pay for support." -
Correction of the Child.—The extent of the authority of par-
ents over their children has varied greatly in different ages and
under different systems. By the early Roman law the father had
the power of life and death over his children as well as over
his slaves. The common law gave the parent only the right
of moderate correction of his child. For an abuse of his au-
thority in this respect a civil action would not lie at the suit
of the child, but was punishable criminally. The idea of what
would be excessive punishment has been greatly modified by
the progress of intelligence and refinement. The question of
excess is one for the consideration of the jury.”
Teacher and Pupil.— The right of correction in a moderate
degree extends to persons standing in loco parentis, as a teacher.
A teacher, like a parent, is liable only when the punishment is
excessive.”
The teacher—i.e., the school—is an instrument substituted
in place of the parent by the mutual consent of the state and
the parent, and for the time being stands in loco parentis for
the special purpose, and at some reasonable point in the tran-
sition from the home to the school the child passes from the
control of one to the other, but the teacher has the right to
control beyond the limits of the school-yard.”
SEC. 563. The State as Parens Patriae.—Under our theory
of government the duties and powers formerly exercised by the
sovereign as paren's patria, have devolved upon the state.” By
virtue of this power the right of the parent to the custody and
services of his child is subject to the control of the state, to be
exercised from considerations of public policy for the good of
the child in the matter of education and for protection against
1 Smith v. Rogers, 24 Kan. 140; 36
Am. Rep. 254; Gorman v. State, 42
Tex. 221.
2 And depends upon the age and
health of the child and other cir-
cumstances of the particular case.
Johnson v. State, 2 Humph. 283; 36
Am. Dec. 322; Osborne v. Allen, 26
N. J. L. 888; Smith v. Slocum, 62 Ill.
354; Com. v. Coffey, 121 Mass. 66;
Neal v. State, 54 Ga. 281. See, how-
ever, State v. Jones, 95 N. C. 588; 59
Am. Rep. 282.
3 Linder v. Seaver, 32 Vt. 114; 76
Am. Dec. 156; Boyd v. State, 88 Ala.
169; 16 Am. Rep. 31; Danehoffer v.
State, 69 Ind. 295.
4 Deskins v. Gose, 85 Mo. 485.
5 Dodge v. Cole, 97 Ill. 338; Mor-
mon Church v. United States, 136
TJ. S. 1.
678 I)OMESTIC RELATIONS. - [$ 564.
being employed in occupations immoral in their tendency, or
for which his age unfits him."
In the important case of People v. Ewer * the court well ex-
plained the principles underlying this whole question in the fol-
lowing language: “The proposition is indisputable that the
custody of the child by the parent is within legislative regula-
tion. The parent, by natural law, is entitled to the custody
and care of the child, and, as its natural guardian, is held to
the performance of certain duties. To society, organized as a
state, it is a matter of paramount interest that the child shall
be cared for, and that the duties of support and education be
performed by the parent or guardian, in order that the child
shall become a healthful and useful member of the community.
It has been well remarked that, the better organized and
trained the race, the better it is prepared for holding its own.
Hence it is that laws are enacted looking to the compulsory
education by parents of their children, and to their punishment
for cruel treatment, and which limit and regulate the employ-
ment of children in the factory and the workshop, to prevent
injury from excessive labor. It is not, and cannot be, disputed
that the interest which the state has in the physical, moral and
intellectual well-being of its members warrants the implication
and the exercise of every just power which will result in pre-
paring the child, in future life, to support itself, to serve the
state, and, in all the relations and duties of adult life, to per-
form well and capably its part.”
The power of the state in such cases is undoubted, but its
exercise is limited by the constitutional guaranties of liberty
and due process of law.” The thirteenth amendment applies to
all persons, and prevents the creation of an actual servitude
under the guise of protection.”
SEC. 564. Parent’s Action for Injury to Child.— At the com-
mon law a parent might maintain an action for an injury to
the child. This action, however, was based, not upon the pa-
rental relation, but upon the relation of master and servant,
1 People v. Ewer, 141 N. Y. 129; 4 People v. Turner, 55 III. 280; 8
Sheers v. Stein, 75 Wis. 44; 5 L. R. A. Am. Rep. 645; House of R. v. Ryan,
781; Green v. Campbell, 35 W. Va. 37 Ohio St. 197.
698. 5 Id.; Turner, In re, 1 Abb. (U. S.)
2141 N. Y. 129. - 84; McLean Co. v. Humphrey, 104
* See 2 Addison on Torts, $1256. Ill. 378.
§ 564.] DOMESTIO, RELATIONS. 6.79
and a recovery was limited to damages for being deprived of
the child's services. If, therefore, from immaturity or other
cause, the child was not in a position to render service, the par-
ent could maintain no action for an injury to him, because
under the theory of the law there was no pecuniary loss." The
recent cases, however, manifest a leaning toward a more liberal
and more reasonable doctrine, and it may be said to be the
American rule that the right of action is based upon parental
relation.” .
There are various wrongs in which the parent's right of ac-
tion may arise, as, for example, by enticing the child away;”
by forcibly abducting the child; * by beating, or otherwise
purposely injuring the child, or by negligent injury disabling
the child from labor;” and in case of a female child, by seduc-
tion.
Actions for Wrongs to Female Children.—Cases have arisen
in which damages have been asked from one who was instru-
mental in enticing a daughter from her parents and procuring
her marriage to a third person. The right of action in such
case has been allowed, but the damages are restricted to the
time which elapsed previous to the time when the marriage
actually took place." It is, however, a sound rule, and one based
on broad grounds of public policy, which denies the action in
such case, if the girl be of the age of legal consent, for the rea-
son that “the law of marriage entirely overrides the general
principles of right of the parent to the services of the child.”"
A parent suing for the seduction of a daughter actually at
the time a member of his household must base his right to re-
cover upon the loss of service.” Though the daughter were not
1 Grinnell v. Wells, 7 M. & G. 1033;
Southern R. R. Co. v. Covenia (Ga.),
Am, Dec. 671: Cuming v. Railway
Co., 109 N. Y. 95.
40 L. R. A. 253. -
2 Under this rule the father may
recover not only for loss of services,
but for the consequential loss and
expense and time in Care, nursing,
etc., of the child without regard to
age. Netherland Am. St. Nav. Co. v.
Hollander, 5.9 Fed. Rep. 417; Clark v.
Bayer, 32 Ohio St. 299; 30 Am. Rep.
593; Dennis v. Clark, 2 Cush, 347; 48
8 Butterfield v. Ashley, 6 Cush. 249.
4 McGee v. Holland, 27 N. J. 86; 72
Am. Dec. 341. o
5 Horgan v. Pacific Mills, 158 Mass.
402.
6 Jones v. Tevis, 4 Litt. 25; 14 Am.
Dec. 98. *
7 Hervey v. Moseley, 7 Gray, 479, 66
Am. Dec. 515.
8 White v. Nellis, 31 N. Y. 405.
680 I)OMESTIC RELATIONS. [$$ 565, 566.
at the time a member of her father’s household, if he has the
right to recall her home he may maintain the action."
But this is only the nominal ground, it being sufficient to
show that the father is at the time entitled to the services of
the daughter.” In estimating the damages there may be taken
into account the loss of the society of the daughter, the injury
to the parental feelings, and the shame and mortification at-
tendant on such a wrong, in addition to any pecuniary expense
which the parent has sustained for care, medical attendance,
etc.”
Alluding to the legal fiction which has survived from an
early period of the law, the courts have declared it to be at
variance with the sentiments and conscience of the age," and
the fiction has been abolished by statute in some states, it not
being necessary there for the parent to rest his action upon the
loss of service.”
By the weight of authority in this country the father may
maintain the action, though at the time the daughter was liv-
ing away from home, if he has retained the right to control her
services, though she were actually in the service of another.”
In England, however, the action is not allowed under such cir-
cumstances."
SEC. 565. Statutory Action in Favor of Kindred for Sale of
Intoxicants.— Statutes of recent date in many states give to
the parent or child an action against any one who has sold in-
toxicating liquors, which sale has resulted in a consequential
injury to person or property or means of support. Such stat-
utes were unknown to the common law and are strictly con-
Strued.” -
SEC. 566. Actions for Death of Husband, Wife or Kindred.—
At common law, if the same act which deprived the father of
1 Kennedy v. Shea, 110 Mass, 147; 57 Am. Rep. 244; Fry v. Leslie, 87 Va.
14 Am. Rep. 584. - 269; Stoudt v. Shepard, 73 Mich. 588.
2 Lawyer v. Fritcher, 130 N. Y. 239; 6 White v. Murtland, 71 Ill., 250, 22
14 L. R. A. 700. Am. Rep. 100; Lavery v. Crooke, 52
3 Cooley's Elements of Torts, 83; Wis. 612; 38 Am. Rep. 768; Simpson
Blanchard v. Illsley, 120 Mass. 487; 28 v. Grayson, 54 Ark. 404.
Am. Rep. 535; Scarlett v. Norwood, 7 Dean v. Peel, 5 East, 49; Gladney
115 N. C. 284. v. Murphy, 26 L. R. Ir, 651.
4 Ellington v. Ellington, 47 Miss. 8 Cruse v. Aden, 127 Ill. 231; 3 L. R.
329. A, 327; Friend v. Durks, 37 Mich. 25.
5 Franklin v. McCorkle, 16 Lea, 609;
§ 567.] IDOMESTIC RELATIONS. 6Sī.
the services of his child resulted in the death of the child, the
recovery could be for loss of services for such time only as
elapsed between the time of injury and the death, and for the
necessary expenses incurred for medical attendance, care and
nursing."
There was no right of action springing from the death itself.
If the death was instantaneous there was no redress. But this
defect of the law was remedied in England by Lord Campbell's
Act, passed in 1846, which has been substantially followed in
most of the states of this country. Under these acts there can
be no suit when the deceased himself, if death had not ensued,
could not have maintained one; as, if he had accepted Satisfac-
tion for the injury previous to death.”
Statutes, however, are in force in some of the states of the
Union which give to some designated beneficiary a right of
action that only comes into existence after the death and which
is not the survival, continuation or enlargement of any pre-
existing right.”
SEC. 567. Family Rights Concerning the Dead.—Appro-
priate obsequies and proper disposition of the remains of the
dead are recognized as within the protection of the law.” This
being so, the duty of according it must fall on some one. And
this is a duty which is enjoined by society.” So it has long
been held that it is not only the duty but the paramount right
of the husband to bury the corpse of his wife.” In analogy to
this rule it is held in some states that prior to burial the widow
has the superior right to designate the place of interment of
the body of her deceased husband, but that her control ceases
at the burial, and that thereafter the care of the grave and
control over the further disposition of it belongs to the next of
kin.” In other states, however, a different rule exists. Thus,
1 Hyatt v. Adams, 16 Mich. 180;
Sherman v. Johnson, 58 Vt. 40.
2 Littlewood v. Mayor, etc., 89 N. Y.
24; 42 Am. Rep. 271.
8 Cooley's Elements of Torts, 94.
4 Chapple v. Coope, 13 M. & J. 252.
* Regina v. Stewart, 12 Ad. & El.
773.
6 Durell v. Hayward, 9 Gray, 248;
69 Am. Dec. 284; Cunningham v.
Reardon, 98 Mass. 538; 96 Am. Dec.
670. If, however, the husband is un-
able to bear the charges of the wife’s
burial, they must be met Out of her
separate estate if she has any. Gould
v. Moulahan, 53 N. J. Eq. 341.
7 Wynkoop v. Wynkoop, 42 Pa. St.
293; 82 Am. Dec. 506. In Larson v.
Chase, 47 Minn. 307, the court said:
“That the right of the surviving wife
(if living with her husband at the
time of his death) is paramount to
682
DOMIESTIC RELATIONS. [$ 567.
>
in a recent case in Rhode Island, it was decided that a widow
had a right to remove the body when it had been buried by
the next of kin in a particular cemetery against her wishes;"
and if one dies possessed of an estate, the first duty of the ex-
ecutor is to bury his decedent. One who fulfills this duty in
the absence or neglect of the executor may recover his disburse-
ments from the executor.” -
It is also the duty of the father to bury his child.”
By the common law the person who bore the expenses of
the funeral had a right of property in the shroud or other ap-
parel of the dead.” The common law did not recognize prop-
erty in the dead body, and its recognition of the rights of the
family as an aggregation of persons in respect to the burial of
the dead was very faint and uncertain.
The supreme court of Indiana holds, however, that a corpse
is property, in the strict meaning of the term, and that the
bodies of the dead belong to the surviving relatives in the order
of inheritance; that they have the right to dispose of them as
property, and that the courts of the state possess the power to
protect the relatives in the exercise of the right of burial.”
There is a strong tendency to show regard for the feelings
that of the next of kin is in accord-
ance, not only with common custom
and general sentiment, but also, as
we think, with reason. The wife is
certainly nearer in point of relation-
ship and affection than any other
person. She is the constant compan-
ion of her husband during life, bound
to him by the closest ties of love, and
should have the paramount right to
render the last sacred services to his
remains after death. But this right
is in the nature of a sacred trust, in
the performance of which all are in-
terested who were allied to the de-
ceased by the ties of family or friend-
ship, and if she should neglect or re-
fuseit, of course the courts would have
the power to regulate and control its
exercise.” See also Secord v. Secord,
31 Leg. Int. 268; F. K. Carey in 19
Am. T. Rev. 263; Jno. F. Baker, in 10
Alb. L. J. 71. It was said in Snyder
v. Snyder, 60 How. Pr. 368, that an
inflexible rule preferring the widow
to the children would sometimes pro-
duce outrageous consequences, and
that the question must be solved
upon equitable grounds. In that case
the claim of the son was preferred.
1 Hackett v. Hackett, 18 R. I. 155;
19 L. R. A. 558. In Pierce v. Swan.
Pt. Cem. Prop., 10 R. I. 227, the
widow’s right was denied on the
ground of long acquiescence.
2 Patterson v. Patterson, 59 N. Y.
575; 17 Am. Rep. 384. -
8 Regina v. Vann, 8 Eng. L. & Eq.
596.
42 Cooley's Blk. 429; Meagher v.
Driscoll, 99 Mass. 281; 96 Am. Dec.
759.
5 Bogert v. Indianapolis, 14 Ind.
134; Renihan v. Wright, 125 Ind.
536; 9 L. R. A. 514,
§ 568.] DOMESTIC RELATIONS.
(383
of surviving relatives by allowing thern to exercise complete
control of the disposition of the body.' Thus, in several late
cases, damages have been recovered for the unlawful mutila-
tion and dissection of the body of the plaintiff's husband.” The
authorities, however, are not uniform on this proposition.”
SEC. 568. Guardian and Ward.—The rules regulating the
relation of guardian and ward under the Roman system grew
out of the laws relating to inheritance. In the early status
of the Roman law the father owed no duty to account to a
higher authority for his actions in dealings with his child, and
the responsibility of the guardian at that time was little, if any,
greater; but with the advance towards civilization and the ac-
companying development of the law, the duties of a guardian
were considered as approximating those of a trustee.
Guardians under the Roman law were either tutors or cu-
rators. - º
The tutor was one upon whom devolved the care of the es-
tate when the child was suº juris, but incapable by reason of
immature age of properly administering his affairs. He derived
his authority either from testamentary appointment, under
operation of law, or by the appointment of a magistrate.
The curator was one who fulfilled the duties of a guardian
from the time when the child passed the age of pupilage till
1 Probably under the power which
courts will exercise in some cases to
enjoin the doing of an act calculated
to wound the sensibilities of an indi-
vidual, where the doing of the act is
wholly unjustifiable, even though the
existence of any property, as that
term is usually applied, is not in-
volved, a relative may have an injunc-
tion to prevent an act of desecration
or mutilation. See Schuyler v. Cur-
tis, 147 N. Y. 434.
2 Larson v. Chase, 47 Minn. 307; 14
L. R. A. S5; Foley v. Phelps, 37 N. Y. S.
471. And where a cemetery associa-
tion disinterred and removed the
body of a child, the father was al-
lowed to recover damages for out-
raged feelings and mental suffering.
Rirkfield v. Mt. View Cem., 12 Utah,
3.See Cooke v. Walley (Colo.), 27 Pac.
Rep. 950. In this case the right of
action was denied where a physician
had held an autopsy on the body of
the deceased, who had died suddenly,
in order to ascertain the cause of
death before making out the certifi-
cate required by law. See also Young
v. College of Physicians, 81 Md. 371.
These cases, however, were decided
in view of the positive requirements
of the statute. In Griffith v. Char-
lotte & A. R. Co., 23 S. C. 25, there
was held to be no authority in the
administrator to maintain an action
against a railway Company for neg-
ligent mutilation of the body of the
testator.
4 That is, when he was freed from
the control of the parent.
76.
684. DOMIESTIC RELATIONS. [Š 568.
he reached his majority, and he might be appointed for the
whole time or for a special transaction. The object of his ap-
pointment was to preserve the estate, and his chief duty was
to advise and counsel with the ward in matters connected
there with." -
Classes of Guardians.—The old English law recognized guard-
ians by nature, for nurture and in socage, or by the common
law.” -
The duties of the guardian by nature, or for nurture, were
such as pertained to the person and custody of the ward, his
education and maintenance, and devolved upon the parents.”
Guardianship in socage was a relation incident to the owner-
ship of land and arose where a child under the age of fourteen
years was entitled to an estate in lands. It devolved upon the
next of kin to whom the inheritance could not possibly descend."
This species of guardianship has existed in this country in the
state of New York, where the time of its duration and the per-
son who might be appointed were regulated by statute.”
In this country guardians are either by nature, by testa-
mentary appointment, or by judicial appointment. The subject
is generally regulated by statute. The authority of guardians
by nature extends only to the person and not to the estate of
the ward. The father is guardian by nature, and after his
death the mother, except in the case of an illegitimate child.”
Such a guardian can have authority over the minor's estate
only by appointment." *
Dy an early English statute” the parent was given the power
to name by deed or will the person who should act as guardian
of his minor child, living or likely to be born. This statute
has been substantially adopted quite generally in this country,
but the power of appointment is commonly restricted to per-
1 Morey’s Roman Law, 252 et seq.
2 Other species of guardianship
known under the old system it is un-
necessary to mention for the reason.
that they were either local or soon
became obsolete. Schouler's Dom.
Rel. 390 et seq. -
3 See “Parent and Child,” Sec. 561.
Guardianship by nature extended to
all the children and continued to the
age of twenty-one years. Guardian-
ship by nurture existed as to chil-
dren other than the heir apparent
and ended at fourteen years.
41 Blk. Com. 461.
5 Beecher v. Crouse, 19 Wend. 306;
Bmerson v. Spicer, 46 N. Y. 594.
6 See ante, sec. 562, where it is
pointed out that the mother is re-
garded as the guardian of such an One.
7 Perry v. Carmichael, 95 Ill, 519.
812 Car. II., ch. 3.
§ 568.] IDOMIESTIC RELATIONS. 685
sons capable of making a will, and if the appointment is made
by deed the instrument must be of a testamentary character."
A testamentary guardian has control over the estate as well
as the person of the ward. A person will be considered a
guardian by testamentary appointment if, though the instru-
ment does not expressly name him as such, its terms confer
upon him the duties and powers of a guardian.” The duties
thus imposed upon the guardian are personal in their nature,
and the appointment by the court of the same person confers
no additional power, unless such a supplementary appointment,
complying with certain required formalities, is prescribed by
statute.”
Upon petition presented to the proper tribunal, a guardian
will be appointed by the court on the proper hearing. Courts
of equity have jurisdiction in such cases, but the power to make
the appointment generally devolves under statute upon the or-
phans’ or surrogate's court. --
The father, if living, otherwise the mother, will generally be
appointed, and the next of kin will be preferred to a stranger; *
but the court will consider first of all the interest of the child
and make an appointment accordingly.”
The appointment having been once made will not be dis-
turbed unless it is shown that the court abused its discretion.
When two or more are appointed as joint guardians, if one of
them dies or is removed, the survivors continue in office.
The authority of a guardian is local merely. His appoint-
ment confers no power beyond the limits of the state in which
the appointment is made. On grounds of comity, however, a
guardian appointed in one state will sometimes be allowed to
bring suit in the courts of another. As a general rule, how-
1 Generally the father has the first
right to appoint. If he dies without
having exercised the right, then the
mother may. A grandfather has not
the right. Hoyt v. Tilton, 2 Edw. Ch.
202.
2 Capps v. Hickman, 97 Ill. 429;
Macknet v. Macknet, 9 C. E. Greene
(N. J.), 447.
8 Wadsworth v. Connell, 104 Ill, 369.
Frequently the statute requires that
before a testamentary guardian can
act—where duties connected with an
estate devolve upon him, he must
file a bond, unless it is requested in
the will that no bond shall be de-
manded. See Thompson v. Thomp-
son (Ky.), 47 S. W. Rep. 1088.
4 Moorehouse v. Cooke, Hopk. Ch.
226.
* Luppie v. Winnans, 37 N. J. Eq.
245; Cowls v. Cowls, 8 Ill. 435.
686 I)OMESTIC RELATIONS. [$ 568.
ever, he has no standing in the courts of a foreign state, and
cannot sue, as guardian, a citizen of another state, even in the
federal courts." The usual method is to procure the appoint-
ment of an ancillary guardian. In the exercise of comity the
domiciliary guardian will in most cases be appointed.”
A guardian as such has no right to claim the services of the
ward, and so he will be allowed to make a reasonable charge
for the ward's support. He may, however, waive this right by
previous agreement, but such an agreement must be clear and
explicit. - - -
If the father, however, is the guardian, he, having a right to
the services of his child, cannot look to the ward’s estate to re-
imburse him for the expense of the child’s maintenance, if he
is able to support him properly.”
The guardian, as such, is not an agent, but stands to the
ward in a position of trust and confidence, and the influence
which the former will naturally acquire over the latter will be
presumed to continue for an uncertain time after the guardian-
ship ceases. The relation being a confidential one, the courts
will carefully scrutinize all dealings between the parties, and
if it appears that the guardian has used his position to obtain
an undue advantage of the ward, the transaction will be set
aside.” The mere fact that, on the settlement of the guardian’s
accounts, the ward executes a release, will not prevent a court
of equity from giving relief on the ground of fraud.”
The guiding rule of the guardian’s conduct must always be
to advance the interest of his ward." In the management of
the ward’s estate he must guard against loss by the exercise
of ordinary care. If loss results from his mismanagement or
carelessness, he will be liable." But so far as he acts in good
faith he will not be held accountable for loss resulting from
mere error of judgment.”
On entering upon his duties, the guardian must reduce to
possession the ward’s property of every kind.” In some states
1 Smith v. Madden, 78 Fed. Rep. 833. 6 Bond v. Lockwood, 33 Ill. 212.
* Hoyt v. Sprague, 103 U. S. 613. 7Sanders v. State,491nd. 228; Leon-
Whart. Confl. of Laws, $266. ard v. Barnard, 34 Wis. 105.
3 Moore v. Moore, 31 S. W. Rep. 582. 8 McElheny v. Musick, 63 Ill. 328;
4 Webb v. Branner, 52 Pac. Rep. 429. Windon v. Stewart, 43 W. Va. 711.
* O’Connor v. O’Connor, 37 Atl. Rep. 9 Pierce v. Prescott, 128 Mass. 140.
634.
§ 568.] DOMESTIC RELATIONS. - 68'ſ
he has authority under the statutes to demand and sue for the
ward's personal property in his own name." In others, suit
must be brought in the name of the ward; and generally, suits
concerning realty must be prosecuted in the ward’s name and
not in the name of the guardian, as is the case in guardianship
in socage.”
Guardianship will be terminated by the death of either party;
by the majority of the ward,” and, if the ward be a female, by
her marriage, and, it is sometimes held, by the marriage of the
guardian, if the guardian is a woman; by the resignation or re-
moval of a guardian, or by the expiration of the term of a tes-
tamentary guardian.
The rule that the marriage of the ward terminates the guard-
ianship is not applicable to guardianship of the estate, but of
the person, for it is inconsistent with the conjugal rights that
a married woman should be under any other guardianship than
that of her husband.” - -
Temovals of guardians and the cause therefor are matters
now regulated almost entirely by statute, but, in the absence of
statutory provisions on the subject, every guardian is respon-
sible for his conduct, to the court of chancery and may be re-
moved for abuse of his trust;" but to justify a removal there
must be shown positive misbehavior on the part of the guard-
ian, or want of integrity in his dealings with the property of
his ward. A mere error of judgment, which the guardian sub-
sequently corrects to the best of his ability, will not justify a
removal. Always in examining such questions the courts will
look closely into the facts of the particular case and act upon
discretion." The court will not decree a removal of the guard-
ian because the Ward has taken a dislike to him and will have no
dealings with him." It is discretionary with the court whether
a guardian will be allowed to resign, depending upon the con-
dition of the guardianship and the best interests of the ward.
When the time comes for the termination of the guardian-
ship, the guardian will not be released until he has rendered a
1 Ind. Order, etc. v. Stahl, 64 Ill. (N. M.), 34 Pac. Rep. 40; Decker v.
App. 314. IFessler, 146 Ind. 16.
2 Mueller v. Benner, 69 Ill. 108. 5 In re Andrews, 1 Johns. Ch. 99.
3In re Kincaid's Est., 52 Pac. Rep. 6 MacGill v. McEvoy, 85 Md. 286.
492, 7 France v. Franz, 4 Ohio (N. P.), 278.
*Montoya De Antonio v. Miller
688 I)OMESTIC RELATIONS. [$ 569.
satisfactory account of his management of the ward's estate.
This is called a final account, but in addition it is required that
the guardian shall render intermediate accounts. In many
states statutes direct that these intermediate accounts shall be
rendered yearly, while in other states they are to be made at
such times as the court directs."
SEC. 569. Apprenticing or Binding Out of Minors.-In every
community there are, on account of the vicissitudes of life, in-
digent persons who are unable by their own exertions to care
for and provide for themselves. In many cases the statutes
providing for the support of indigent paupers, irrespective of
age, afford the necessary and appropriate relief, but in many
other cases there are persons who are minors whom it would
not only be unnecessary but injurious for the state to place
Runder the conditions of pauperism.” - *
Although not being able to support themselves, or the circum-
stances being such that others are willing to assume the re-
sponsibility of their care and support, most states, by statute,”
provide for the establishment of a permanent quasi-domestic
and quasi-contractual relation between these persons and adult
members of the community, either by way of adoption, which
has heretofore been spoken of, or by way of what is called
binding out or apprenticeship, by which the minor is required
to become a member of the family, or to serve the person to
whom he is apprenticed until he attains his majority, or until
such other time as the statute may fix, or until the trade he was
apprenticed to learn was acquired,” in exchange for which he
received nurture and support, and very frequently a fixed sum
in money and designated apparel. Each state has its own
statute providing for the apprenticing of children.”
1 Curtis v. Devoe, 53 Pac. Rep. 936, apprentice her child. People v. Gates,
$ee further, Action of Account; also,
Schouler, Dom. Rel. 389, 488.
* Apprenticeship, being in the nat-
ure of a servitude, can only be en-
tered into by persons under disabil-
ity and because of public policy.
Cooley, Const. Tim., p. 363, n. 2.
* At common law the parents, or
even the wife, if deserted, could as-
sent to an indenture which would
43 N. Y. 40.
4 The minor had the capacity to
make such a contract with the con-
sent of his parents. Cooley, Const.
Lim. (6th ed.) 413; Purviance v.
Shultz, 16 Ind. App. 94; Pardey v.
Am. Ship W., 19 R. I. 461.
5 See Wigly v. Mobley, 101 Ga. 124;
Moore v. Allen, 72 Miss. 273; Darling
v. Iron Works, 26 Oreg. 405.
PART II.
mºssºmsºmºmº
THE LAW OF THING S.
PROPERTY AND CONTRACTUAL RIGHTS.
CHAPTER XXIX.
THINGS (OR PROPERTY).
SEC. 570. Scope of the Subject—In this second great depart-
ment of law, our inquiry is directed to the acquisition, domin-
ion, ownership and disposition of things, or, as it may be ex-
pressed, the law of property in things.
Considerably more than the proportionate space has been de-
voted to the first part of the work, not because of its greater
importance, but because the treatment is entirely novel as ap-
plied to American law, and because it differs materially in many
particulars, both as to method and principles, from any institu-
tional work upon our law that has heretofore appeared. On
this account it has been thought desirable to devote considerable
space to making fundamental distinctions as clear as possible.
As to the remaining titles of our law—Things, Actions (or
Procedure), and Criminal Law, while it is to be hoped that
Something is added as to clearness and somewhat of substan-
tial improvement in matter, it must be recognized that the
subjects which make up these great departments have been so
frequently and ably treated as to leave the thing most to be
desired, such an outline as will enable the student to under-
stand the elementary principles which govern these subjects
and to perceive the unity of the whole and the relation of the
parts to each other, leaving him to acquire that intimate and
exhaustive comprehension of the innumerable rules which flow
from the general principles by a study of some of the many
excellent treatises in which our law abounds.
SEC. 571. Meaning of the Word “Thing.” – If our efforts
have been successful in explaining the nature and meaning of
the words “thing” and “property” for the purposes of classi-
fication and division, the reader understands that by this word
“thing” is meant anything which, according to our law, may
become the object of a right."
1 Ante, pp. 106–108.
690 THINGS. - [$ 572.
In this sense it is not necessarily opposed to the word “per-
son’’ or “personality,” in the legal sense of capacity. Person-
ality is an attribute of the individual. A thing is the possession
of an individual. The individual is the possessor; these others
are possessed by him." The one is his personality, the other
his property. Life and liberty are personal rights not depend-
ing on personality. Property is a right in a thing. Things
contrast with personal rights rather than with personality.
To be a thing in the eye of the law it is not necessary that
that which is so denominated shall be tangible or visible.” In
a broad sense, the word “thing” takes in every right, but in
the sense in which it is to be used in our law, as an estate, prop-
erty, ownership, or the rights of property, in contrast with
those mere personal rights of life and liberty, it is narrowed in
the scope of its meaning so as to exclude all those valuable and
sacred rights which have heretofore been treated, and to in-
clude only those valuable interests one may have outside of
himself, or, as Blackstone said, “unconnected with the person.”
SEC. 572. “Thing ” and “Property” Distinguished.—The
endeavor heretofore has been to make clear the distinction
between the right of dominion and the thing owned, which
marks the distinction between property and the subject of prop-
erty." Schouler, in his “Personal Property,’” says: “Whoever
reads Blackstone's chapter on ‘Property in Things Personal’
should perceive that he confounds two senses of the word
“property,’” one signifying the thing possessed, the other the
right of possession.”
It is essential to a just conception of either personal rights
and relations or property that these distinctions be thoroughly
mastered and constantly kept in mind. Every right must be
a personal right in the sense that it belongs to a person, natural
or artificial, and the object of every right must in some sense
be a thing; but there is a clear distinction between the right
which has for its object rights flowing from status, or some-
thing necessarily attached to the person of the possessor, or
1 See Bouvier's Law Dic. (Rawle's nati v. Hafer, 49 Ohio St. 60; People
Ed.), title “Things.” Person is there v. Tioga, 19 Wend. 73.
used in the sense of the individual. & Ante, p. 126; 1 Ham. BIk. 332.
*Amte, pp. 119, 124; Hale's Analysis, 4 Sec. 96.
Sec. XLI; Holland, Jur. 86; Cincin- 51 Schouler's Pers. Prop. (3d ed.),
Sec. 11.
§ 573.] THINGS. 691.
incident to his personality, and a right the object of which is
a thing tangible or intangible which is not necessarily per-
sonal, but attaches to some other definite person or thing as
its object."
SEC. 573. Acts May be Things.-In this sense the actions
of others which do not merge the personality of the owner
may be called things or property, and in this sense “property”
may embrace everything which may minister to the wants or
pleasure of another which does not come by a merger of per-
sonality.”
To enforce this idea the opinion of the supreme court of the
United States was quoted that the term “property’ embraces
all valuable interests which a man may possess outside of him-
self; that is to say, outside of his life and liberty,’ which ex-
pression may be modified by adding to the phrase outside of
himself, “and his domestic relations,” which are, however, in a
sense a part of himself.” -
Attention has been heretofore directed to the distinction be-
tween the conception in the eye of the civil law and the common
law meaning of the word “thing,” that all rights of whatever
kind or character are in the former deemed “things,” while in
the latter system, all which a man might acquire of others and
1Upon this distinction rests the
rule that actions for injuries affect-
ing the person are not assignable and
do not survive the death of the in-
jured. People v. Tioga, 19 Wend. 73.
2 Ante, pp. 118–19. W. A. Watt,
LL.B., D. Phil., Glasgow, in a learned
disquisition on the theory of con-
tract, says: “Contract must deal
with conduct. We must be allowed
to buy human activity. We must
be allowed to deal in human brain
and muscle so long as Contract ex-
ists. I sell my actions quite legiti-
mately, and have no right to quarrel
with the purchaser because he is
buying human flesh and blood. If
any suggestion lurks in our minds
that, whilst contract can legitimately
deal with property, with external ob-
jects, it cannot deal with what we
may call human products, that must
be dismissed. Indeed it has only to
be stated clearly to be dismissed.
All the property that forms the mat-
ter of Contract has been so related to
human life as to become part of it.
From the legal point of view it has
been taken up into the unity of
an obligation.” Theory of Contract,
p. 14. See post, $616, M. & S.
3 Ante, p. 126.
* Even as to the right and interest
which husband and wife and parent
and child have in each other, by way
of right of Society, protection, sup-
port, service, etc., they even have
been classed as property (Jane v.
Jane, 39 Hun, 40, approved in Warren
v. Warren, 89 Mich. 123, 14 L. R. A.
545); but I do not so class them, for
the reason that they are more prop-
erly personal and are incident to
status rather than ownership.
692 THINGS. [$$ 574, 575.
insist upon having and protecting by the law of the land were
termed “rights,” but not all rights were by that system re-
garded as things."
SEC. 574. Classes of Things.-The English law narrowed the
civil-law conception of things to include only (1) estates in land
or real property; (2) personal property, consisting of (a) chat-
tels, i. e. property in tangible things, and (b) choses, i.e. rights
respecting intangible things, arising through transactions with
or growing out of the conduct of others, and which created an
obligation termed in the English law a chose.
These three species of things mark the extent and boundary
of the English law of things. In this system of classifigation
American law coincides with the English rather than with the
Roman, although the extent of the things embraced within the
denomination chose has broadened somewhat, and the concep-
tion of the distinction between the right and the object of the
right has become clearer and better defined than under the
English law as presented in the Commentaries of Blackstone.
SEC. 575. Property.— Our law abounds in learned disquisi-
tions concerning the nature and origin of property, wherein it
is supposedly traced from its earliest forms to its present stage
of refinement.
It is often affirmed that the right is a natural one, and that
its original form is a title by occupancy. It will be found on
examination that these disquisitions may all be resolved into
unsupported theories, or opinions founded upon some prior
theory. º --
It seems, however, natural that what a man, or any other of
God’s animals, occupied, he might use until some other dispos-
sessed him. If we may judge the original nature of individuals
by the conduct of communities as they now appear, it would
seem natural that at one time title deeds consisted in the power
to defend.
It may be regarded as certain that there was no known
recognition of ownership other than possession until society
had advanced somewhat towards civilization, and that no mat-
ter how long one may have used and enjoyed, there was no
known means of perpetuating his right to the enjoyment until
there arose that combination and community between individ-
1 Ante, pp. 109, 119, 125; Deshler v. Dodge, 16 How. 622.
§ 575.] THINGS. 693.
uals known as society. And even after societies had been
formed, it was not originally the practice to allow an owner-
ship distinct from possession." -
If one occupied a certain space, the air which surrounded
Him he might use, the water which he might require he might
take, the land which he might occupy he would not be divested
of except by superior force. The movable things which he had
acquired were precisely in the same situation. His pre-emp-
tion documents were his weapons, and his tenure his ability to
defend.
It is claimed that the first forms of property were community
property allowing to the individual the usufruct.” Experiments
of that kind have been tried in America, but have been unsuc-
cessful.” g
Property, in the modern sense of the right to possess, enjoy
and control, distinct from actual possession, does not derive its
origin from nature, although the existence of such rights may
'be said to be conformable to nature,”
Wilson quotes approvingly the sentiment of Paley that the
real foundation of property is municipal law.”
Chancellor Kent also says that “whatever may be the theory
on the subject, yet, in point of fact, as far as we know, prop-
erty has always been the creature of civil institutions; that by
the ancient law of all the nations of Europe, the bona fide pos-
sessor of goods had a good title as against the real owner, in
whatever way, whether by force, fraud or accident, the owner
may have been divested of the possession; and such was the
law so late as the middle of the last century.”"
We have heretofore directed attention to the opinion of
Judge Marshall that the law of property in its origin and op-
eration is an offspring of the social state, and not an incident
of a state of nature."
It may therefore be safely affirmed that, for all practical
12 Kent, Com. *320. sense created by the act of the public
2 Id. will, but it is by one of those funda-
3 These were at Virginia and New mentalacts which constitutesociety.”
Plymouth. 2 Wilson's Works, 493. Quoted in Dodge v. Woolsey, 18 How.
4 See 4. Burr. 2365. 331–375. All of these opinions go to
52 Wilson's Works, 483. confirm the view that all civil rights
62 Kent, Com. *320. result from the formation of civil
"Ante, p. 126. Sir James McIntosh society.
says: “Property is indeed in some
694. THINGS.
[$$ 576, 577.
purposes, only one of the incidents of property is acquired by
mere possession, namely, the right to use,_an incident falling
far short of that perfect right to possess, enjoy and transmit"
which is recognized and protected by our law of property.
SEC. 576. The Several Kinds of Property.— Property is a
generic word. Its two principal species are denominated in
our law “real” and “personal.” The denomination “real” is.
highly artificial, and seems to have had its origin in the Anglo-
Saxon law rather than in Roman jurisprudence.” It includes.
lands and things appertaining thereto, as distinguished from
chattels tangible and choses; and while under our system the
boundary line has been worked out with infinite care and con-
siderable certainty, it is obvious that land is no more actual or
real than are tangible chattels, and that what is called a chat-
tel real is more intangible than a real chattel.
The ownership of land as allowed by the English law was
not denominated real property, but real estate. Movable things.
and choses might be owned in property, but one could acquire
at most only an estate in land, and this was termed real estate,
not real property. The classification of things under the Eng-
lish law then is “estates” (in land) and “personal property.”
Each of these species of property is again classified into sub-
Ordinate sub-classes. As to the subdivisions of real property,
they will be mentioned in connection with that title, and we
may here enumerate the things in which a qualified interest or
absolute property may be acquired.
SEC. 577. Light and Air are obviously subject to nothing
more than use, but, in order that a reasonably perfect enjoy-
ment of an estate in land may be had, the law protects that.
ownership from unreasonable deprivation of light or pollution
of air, deeming contiguous erections cutting off the light, and
1 Wynehamer v. People, 13 N.Y.378. a real action would lie for it, and
*The origin of this classification is
not certain. The classification is sup-
posed to have been derived from the
forms of action real and personal.
By the former, the real thing could
|be restored and the plaintiff put in
possession; by the latter, it could be
restored or damages awarded. The
former Originally extended only to
land; the latter to chattels. Hence,
land was called real property because
chattels were called personal prop-
erty because a personal action only
would lie for them. Informs of action,
through the feudal system, the terms.
used were “lands, tenements and
hereditaments.” The word “real,”
as denoting a species of property dis-
tinguished from “personal,” was not
used till the feudal system had lost
its hold. 1 Ham. Blk. 335; 1 Saund.
347.
§§ 578, 579.] THING.S. 695
unreasonable Occupations tainting the air, nuisances, for which
the owner has several modes of relief."
SEC. 578. Water.—No one can obtain a property in the water
of running streams,” although he may acquire an interest in its
use greater than that of others, so that it cannot be said that
such water is common alike to all; for the riparian owner of
a non-navigable stream has the right to exclude others from
its use and enjoyment to the extent of his boundary, and he may
freely use the waters for the purposes of husbandry and man-
ufacture, and may divert a portion of it temporarily for that
purpose, or diminish somewhat the volume of its flow,” or to
some degree pollute it. But in all these respects, what shall
be the extent of the reasonableness must be and is left to the
determination of the local law as administered by the courts;
and the boundaries of such reasonable use may be defined and
their transgression restrained, so that after all, as to non-navi-
gable streams, the interest which one may have in the water
itself is really an incident to his ownership in the land, and
should be treated with the subject of real property.”
SEC. 579. Animals.-According to the supposed design of
the Creator, it is assumed and maintained that certain animals.
are domestic by nature, while others are ferae naturae, or nat-
urally wild. This view seems confirmed by the experience that
some animals take kindly to association with men, while others.
refuse to be domesticated. ~~
Cattle is the generic name for domestic animals. It may in-
clude all the species,” and even fowls" and birds."
Property in wild animals which have been captured and tamed
depends upon the degree to which they have been domesticated.*
It is not recognized further than the right of possession, or
under such degree of control, or such proximity of pursuit, that
the former possessor may be said to have lost entirely his power
1The generalsubject of “Nuisance” Cases, 642; Emporia v. Soden, 25 Kan.
in the law of actions covers this sub- 421; Pool v. Tewis, 41 Ga. 162; 5 Am.
ject. See Cooley’s Elements of Torts, Rep. 526; Cooley's Elements of Torts,
248, 250 et seq., and cases there cited; 240, 241. See “Riparian Rights.”
also, see “Easements,” infra. 5 Randall v. Railway Co., 104 N. C.
2 Sweet v. Syracuse, 129 N. Y. 316; 410; Decatur Bank v. St. Louis Bank,
Acquackanonk Water Co. v. Watson, 21 Wall. 294.
29 N. J. Eq. 369. & 6 State v. Bruner, 111 Ind. 98.
3 Id.; Blanchard v. Baker, 8 Me. 253. 7 Colam v. Pagett, 12 Q. B. Div. 66.
* Lyon v. Fishmongers Co., 1 App. 8 Armory v. Flyn, 10 Johns. 102.
G96 THINGS.
[$ 580.
over the animal, or where, in the act of taking wild animals as
game, the hunter has brought the quarry under some degree of
captivity, or attained what may be said to be striking distance."
JOogs.--Dogs have been regarded differently at different
times and by different courts, but there seems to be no differ-
ence of opinion at the present time but that a dog is the sub-
ject of property,” and that the owner may be liable for injuries
inflicted on others in person and property, and that he has the
right to the protection of the law.”
The natural increase of female animals belongs to the owner
at the time when the increase is brought forth, unless modified
by contract or custom.”
SEC. 580. Copyright.— Perhaps a better illustration of the
power of municipal law to create property out of abstract
things is the well-recognized species of property in literary
labors and ideas of men, in which the laws of most modern
nations recognize such a special interest and right as is called
property. Copyrights and patents are property; they are not
choses, but things in possession.”
The common law of Great Britain recognized and protected
1 Pierson v. Post, 3 Caines’ Rep.
175; Buster v. Newkirk, 26 Johns. 75;
'Gillet v. Mason, 7 Johns. 16.
? By the common law the interest
which one could have in a dog was
but a qualified or base property. The
ownership could be protected by
civil remedies, but was not of such
a nature that a dog was the subject
of larceny. By statute, however, in
England and in many of our states,
there may be property in dogs for
criminal as well as for civil purposes.
See Sentell v. New Orleans & C. R.
Co., 166 U. S. 698; Com. v. Maclin, 3
Leigh, 809; Graham v. Smith, 100
Ga. 434; 40 L. R. A. 503, and note;
JBlair v. Forehand, 100 Mass. 136.
* An old saying is that “a dog is
entitled to his first bite, but a bear
is not.” That is, the owner of a do-
mestic animal is not liable for an
injury Committed by it of such a
nature that it was not to be expected
from the nature and habits of the
animal. But after the owner has
knowledge of the vicious propensi-
ties of the animal, as, for example,
that his dog is in the habit of attack-
ing persons, or worrying sheep, he
will thenceforth be liable for a fail-
ure to keep the animal secure. May
v. Burdett, 9 Ad. & El.. 100; Muller v.
McKesson, 73 N. Y. 195; 29 Am. Rep.
123; Brice v. Bauer, 108 N. Y. 428; 2
Am. St. Rep. 454; Knowles v. Muller,
74 Mich. 202; 16 Am. St. Rep. 627;
Jones v. Cary, 9 Houst. 246. -
*Under the maxim partus sequitur
ºventrem, in accordance with the
Roman law. N. W. Nat. Bank v.
Freeman, 19 Sup. Ct. Rep. 36; Hull v.
Hull, 48 Conn. 250; 40 Am. Rep. 165;
Rellogg v. Lovely, 46 Mich. 131; 41
Am. Rep. 151. And so the owner of
the dam may mortgage unborn in-
crease. Sawyer v. Gerrish, 70 Me.
254; 25 Am. Rep. 323.
911 Law Quar. Rev. 64; 2 Kent,
*372; Frazier v. Frazier, 121 Ill., 147.
§ 580.] THINGS. 697
the literary productions at all times before publication of the
individual, guaranteeing to him the exclusive right, privilege
or franchise of first putting them in tangible shape and pub-
lishing them to the world." After publication, however, the
common law affords no protection, and the modern law of copy-
right in published works depends entirely on statutes.”
It is frequently a question of great nicety to determine just
what communication to others constitutes such a publication
(before copyright is secured) as will destroy the author's exclu-
sive right.” *
To entitle an author to the protection of the copyright stat-
ute, his work need not be wholly original in the sense that it
is entirely the creation of his own mind. Compilations of com-
mon material may be protected,” or a representation of things
in existence;" but the work must be more than merely trivial,"
and must not be libelous," immoral,” or seditious.”
Mere ideas
1 Duke of Queensberry v. Sheb-
beare, 2 Eden, 329. As to rights in
unpublished dramatic compositions,
see Keene v. Wheatley (Am. Law
Reg., 1861), 33 Fed. Cas. 7644. The
ancient learning upon the subject of
copyright is all gone over in the ar-
guments and opinion in Millar v.
Taylor, 4 Burr. 2303 (A. D. 1769).
28 Anne, ch. 19 (1709); Justice Yates’
judgment in Millar v. Taylor, 4 Burr.
2365, which became the law of Eng-
land; Donaldson v. Becket, 4 Burr.
2408; Jeffries v. Boosey, 4 H. L. Cas.
867; Wheaton v. Peters, 8 Pet. 491.
The statute of Anne protected
printed books only. The protection
now given to prints, musical and
dramatic compositions, etc., is the re-
sult of subsequent legislation. Cole-
man v. Watten, 5 Term R. 136. The
same is true of the statutes in this
country. The first act (1790) was
limited to maps, charts and books.
1 Stat. at Large, 124. This has been
gradually enlarged until it now in-
cludes books, maps, charts, dramatic
or musical compositions, engravings,
Cuts, prints or photographs, or neg-
atives thereof, paintings, drawings,
chromos, statues, statuary, and
models or designs intended to be per-
fected as works of the fine arts. Rev.
Stat. U. S., sec. 4952,
*Lectures delivered or the produc-
tion in drama to an audience is not
necessarily a publication. Drum-
mond v. Artemus, 60 Fed. Rep. 339; 2
Rent, *378. Issuing copies to those
under contract, not to use except in
a restricted way, does not make the
matter public. Jewelers’ M. Agency
v. Jewelers’ Pub. Co., 84 Hun, 12.
4 Lawrence v. Dana, 4 Cliff. 1; Fed.
Cas. 8136; Banks v. McDivitt, 13
Blatchf. 163; Fed. Cas. 961; Jarrould
v. Houlston, 3 K. & T. 708.
5 Stephens v. Cady, 14 How. 528.
6Clayton v. Stone, 2 Paine, 392; Fed.
CaS. 2872; Mott Iron Works v. Clow,
82 Fed. Rep. 316.
7 Hime v. Dale, 2 Camp. 27.
8 Martinette v. McGuire, 1 Abb.
(U. S.) 356; Fed. Cas, 9173; Broder v.
Zeno Mauvais Music Co., 88 Fed. Rep.
74.
9 Southey v. Sherwood, 2 Mer. 435.
698 TELINGS. [$ 581.
however, disassociated from the form of expression, cannot be
the subject-matter of copyright."
The ownership of the copyright is quite distinct from the
ownership of the plates from which the matter is to be printed.”
The former cannot be seized on execution, the latter may.
SEC. 581. Patents on Inventions.—Among the means of ad-
vancing the material prosperity of a people, none is more effi-
cacious than to foster the art of manufacturing, or converting
the raw material into new and different forms, or the produc-
tion of old forms in greater quantities or at less expense.”
The art of devising processes and instruments for this end is
called invention, and the law has, in order to stimulate the
spirit of invention and compensate in a measure the individual
for the good conferred upon the public, devised the means of
protecting the inventor for a limited and reasonable time in a
monopoly of the sale and use of his invention, and this is accom-
plished under what is known as the patent law, by which the
owner is given an exclusive power to use, manufacture and sell
his invention, and all others are prohibited from the same, and
the owner is given a remedy against any person who may in-
fringe his patent.
Jnventions.— In order to constitute an invention the thing
devised need not be intricate and involved.” The simplest de-
vice, if new, or producing new results, may constitute an im-
portant invention and entitle the inventor to a patent.
Inventions which produce articles are not always mechanical,
but sometimes consist in processes of combination and manipu-
lation of material involving the use of nothing which would be
called a machine, other, perhaps, than the vessels or receptacles
for mingling and manipulating the material. Such inventions
are called processes.” For example, the Bessemer steel process,
1 Baker v. Selden, 101 U. S. 99; Per- useful arts, by securing, for limited
ris v. Hexamer, 99 U. S. 675. On the times, to authors and inventors, the
Copyright of the plan of arrangement, exclusive right to their respective
see Bullinger v. Mackay, 15 Blatchf. writings and discoveries.”
355. 4 Gould Coupler Co. v. Pratt, 70
2 Stephens v. Cady, 14 How. 528; Fed. Rep. 622. -
Stevens v. Gladding, 17 id. 447. 5 A manufacturing formula falls
* Art. I, sec. 8, clause 8, of the na- within the term “art” in the statute."
tional constitution is as follows: “To Tilghman v. Proctor, 102 U. S. 707.
promote the progress of Science and
§ 582.] THINGs. & 699
and doubtless many processes of the greatest value, are held
absolutely in secret instead of trusting to a patent or formula."
So the modes of compounding medicines may be patented.
This gives rise to the term “patent medicines.”* Friction
matches are invented by means of chemical combination.”
A process may, however, be patented notwithstanding it is
necessary in order to produce the finished article that machin-
ery be used.*
Mechanical devices may consist in new and original inven-
tions, or improvements upon old devices, or a combination of
old elements producing new and different results, or what
amounts to a new result, producing the old article in finer qual-
ity or at a cheaper price.”
The patent of the United States protects the owner against
the government, or use by the officers of the government. It
cannot be said, however, to be strictly contractual, and a suit
for infringement against the government officers is not a suit
On contract."
One may employ another, and by contract become entitled
to his inventions," but only the inventor is entitled to a patent.
One employed by another in a special line is not entitled to
the benefit of inventions which he may make unless especially
contracted for.”
Suits for the protection of patent-rights specifically must be
brought in the federal courts, but a state court may, when the
question arises collaterally, decide upon the validity of a con-
tract, or enforce a contract in reference to a patent.” But a
state has no right to prevent or restrict the sale of patent-
rights."
SEC. 582. Trade-mark-By the established custom and usage
of merchants, a practice early arose of designating the article
by some particular sign, mark or brand which should of itself
indicate the origin and ownership of the article so marked or
1 See Risdon I. & L. Works v. Me- 7 Joliet & M. Co. v. Dice, 105 Ill. 409.
dart, 158 U. S. 68. • 8 McLeer v. United States, 150 U. S.
2 Curtis On Patent, 22. 193. -
3 Ryan v. Goodwin, 3 Sumn. 514. 9 Pratt v. Paris Gas Co., 155 Ill. 531.
4 Id. 10 Webber v. Virginia, 103 U. S. 344;
* Pennsylvania Ry. Co. v. Locomo- Cranson v. Smith, 37 Mich. 409. See
tive, 110 U. S. 490. “Jurisdiction.”
*United States v. Berdan Arms
Co., 156 U. S. 552.
'700 THINGs. [$ 582.
branded. It was not, however, till the latter part of the eight-
eenth century that a right to the exclusive use of such a par-
ticular brand or mark, known as a trade-mark, was recognized
and protected in the courts.” It has been said to be a merchant's
commercial signature; it is the means by which a purchaser iden-
tifies the origin of a particular article.” And his rivals in trade
were regarded as sailing under false colors if they imitated it.”
It arose among merchants engaged in trade, and has no ref-
erence whatever to invention, discovery or original thought,
such as are involved in inventions and literary productions pro-
tected by a copyright and patents.” -
It should be observed that congress is given the power to
protect literary property and the result of inventions by copy-
right and patent," but there is no reference in the constitution
to a similar protection for trade-marks.
Property in a trade-mark is not strictly an accurate expres-
sion. It cannot exist as a naked symbol disconnected with the
particular merchandise to which it is applied." It does not
arise by any legislation of congress, but immediately on adop-
tion and user,” and is protected by the common law and the
statutes of the various states,” or, in other words, it is within
the control of the states." A civil action for damages will lie
in the state courts for the infringement of a trade-mark, irre-
spective of knowledge or intention." Courts of equity have
long exercised the jurisdiction to enjoin an infringement and
enforce compensation for past injury.”
6 Amte, Sec. 581.
7 Leather Cloth Co. v. Am. L. Cl.
1 Southern v. How, Popham, 144;
Cro. Jac. 471; Larrabee v. Lewis, 67
Ga. 561; 44 Am. Rep. 735.
2 In Blanchard v. Hill, 2 Atk. 284,
the jurisdiction was declined. But it
was thoroughly established in Hogg
v. Kirby, 8 Wes. 215 (1803). A trade-
mark is a mark by which the wares
of the owner are known in trade.
Shaw Stocking Co. v. Mack, 12 Fed.
Rep. 707. It may be a symbol, a
figure or a letter. Larrabee v. Lewis,
Supra.
*Larrabee v. Lewis, Supra.
4 Trade-mark Cases, 100 U. S. 82.
3 Congress Spring Co. v. High Rock
Co., 45 N. Y. 291; Delaware Canal Co.
v. Clarke, 13 Wall, 322.
Co., 11 H. L. C. 532.
8 Trade-mark Cases, supra; Rogers
v. Rogers & S. Mfg. Co., 11 Fed. Rep.
495; McAndrew v. Bassett, 4 De G.,
J. & S. 380; Kathreiner v. Kneipp
Co., 82 Fed. Rep. 321.
9 See State v. Bishop, 28 Mo. 373;
Vogt v. People, 59 Ill. App. 684; Cohn
v. People, 149 Ill. 486.
10 See Coats v. Holbrook, 2 Sandf.
Ch. 586; 7 L. Ed. N. Y. Ch. 713. In
this edition a valuable note is ap-
pended. Frazer v. Frazer Lubricat-
ing Co., 121 Ill. 147.
11 Millington v. Fox, 3 Myl. & Cr. 338.
12 Frazer v. Frazer Lubricating Co.,
§ 583.] THINGS, 701.
In fact, the federal courts have no jurisdiction as such over
trade-mark cases, and can take jurisdiction only on the ground
of diversity of citizenship, or that such goods were intended for
commerce with a foreign country or an Indian tribe.”
The United States congress may appropriately provide for
the registration of trade-marks in reference to the subjects of
interstate commerce, but any action beyond this scope and
which interferes with the rights of the state over this particu-
lar species of property is unconstitutional.”
As a trade-mark arises by use, so it can only be preserved by
use. It cannot be held and transferred to another unless he
continues in its use in the same manner.”
SEC. 583. Things Common.—The sea, harbors and arms of
the sea, for the purpose of navigation, are free and common to
all, and so without doubt in this country is the right to fish
therein." The right of navigation in streams navigable in fact,
in most of the states, is a right common to all persons, and in
which individuals cannot obtain a several and exclusive privi-
lege.” The soil of the beds of navigable streams and arms of
the sea are owned by the state and may be granted or with-
held, and the state may regulate the use of the stream for fish-
ing or oyster culture.” Any special franchise, such as of fishing
or to conduct a ferry, is property."
121 Ill. 147. The courts act on the
two-fold ground of injury to the first
adopter and fraud on the public.
Beddaway v. Banham (1896), App.
Cas. 199; Coats v. Merrick Thread
Co., 149 U. S. 562–566; Singer Co. v.
June Co., 163 id. 169; Pillsbury-Wash-
burn Flour Mills Co. v. Eagle, 86 Fed.
IRep. 608; Garrett v. Garrett, 78 id.
472; Fairbank Co. v. Bell Mfg. Co., 77
id. 869; Thompson v. Montgomery, 41
Ch. Div. 35.
1 Ryder v. Holt, 128 U. S. 525; Luy-
ties v. Hollender, 21 Fed. Rep. 281.
*Trade-mark Cases, supra.
8 Royal Baking Powder Co. v. Ray-
mond, 70 Fed. Rep. 376; Manhattan
Co. v. Wood, 108 U. S. 218.
4. It is not intended to affirm that
the state may not regulate, or, in the
absence of constitutional limitation,
grant franchises of fishing as well as
of ferries. See Gentile v. State, 29.
Ind. 409; Phipp v. State, 22 Md. 380;
arguments in Charles River Bridge
v. Warren Bridge, 11 Pet. 420.
5 Gibbon v. Ogden, 9 Wheat. 1. The
business of ferrying has been re-
garded of such a quasi-public nature
as to justify the granting of a spe-
cial exclusive franchise to conduct a
ferry. Charles River Bridge Co. v.
Warren Bridge, 11 Pet. 420; Mills v.
St. Clair Co., 8 How. 569.
6 Id.; McCready v. Virginia, 94 U. S.
391; Paul v. Hazelton, 37 N. J. L.
106; Martin v. Waddell, 16 Pet. 367.
“There are some things, and they
are the most essential of all to man,
that are incapable of individual own-
7 Convoy v. Taylor, 1 Black, 603.
*702 THINGS. [$ 583.
The riparian owner on a navigable stream which is not
properly an arm of the sea, even above the ebb and flow of the
tide, has the paramount right to all use of the bed of the stream
not inconsistent with its use for navigation, unless his bound-
ary is marked by the edge of the stream.”
As an example may be instanced the right as against all
others to take mineral from the bed of the stream, or to use it
for the purpose of fishing.”
On the sea and in the arms of the sea, the right of fishing is
common; and although at common law, prior to Magna Charta,
special privileges and franchises therein might be granted by
the sovereign, nevertheless it may be doubted whether such a
grant, disconnected with a grant of the soil or its use,” can be
allowed under our system of law (with its limitations upon leg-
islative power) in states not affected with ancient customs hav-
•ership. Such are air and water. All
may and do participate, without re-
straint, in their enjoyment. They
are the common inheritance of man-
kind. There are other things to a
large extent incapable of individual
Ownership, and of these are game
and fish, and they belong to the en-
tire community collectively; and be-
longing to all equally, for their protec-
tion from extinction, and to preserve
the common ownership in all, they
are, and of necessity have ever been,
subject to legislative control. If they
are not, the few would, by their de-
struction or appropriation, deprive
the balance of the community of
their rights in this common inherit-
ance.” Parker v. People, 111 Ill. 581.
1 Braxon v. Bressler, 64 Ill. 338;
Moore v. Sanborne, 2 Mich. 520;
Parker v. People, 111 Ill. 581.
2See Angell on Tide Waters, ch. 7;
3 Kent, *410–17. On the subject of
boundary the policy of the states dif-
fers. It is treated in this connection
with real propery. The title to the
beds of streams navigable in fact is
in the state as proprietary. Morgan
v. King, 35 N. Y. 453; 90 Am. Dec. 58.
ing their inception in colonial times.”
But the title to the seacoast and the
Shores of tidal rivers is not a pro-
prietary but a sovereign right. Coxe
v. State, 144 N. Y. 396. The extent
of riparian or littoral ownership will
depend on the terms of the grant
under which the land is held.
3 Holyoke Co. v. Lyman, 15 Wall.
500.
4 The right to plant oysters (as it is
called) is connected with a definite
piece of the soil.
5 See Chalke v. Dickinson, 1 Conn.
382. Cf. Arnold v. Munday, 1 Halst.
1; Gustafson v. State (Ct. Cr. App.
Texas), 48 S. W. Rep. 518. In Martin
v. Waddell, 16 Pet. 366, Chief Justice
Taney said: “In no one of these col-
Onies has the soil under its navigable
waters and the rights of fishery for
shell-fish or floating fish been severed
by the letters-patent from the pow-
ers of government. In all of them,
from the time of the settlement to
the present day, the previous habits
and usages of the colonists have been
respected, and they have been accus-
tomed to enjoy in common the ben-
efits and advantages of the navigable
waters, for the same purposes and to
§ 584.] THINGS, 703
While the right to hunt and take game is common, this com-
mon right cannot override the paramount right of proprietor-
ship in the land (or bed of the stream); and if, according to the
municipal law of the country or state, the riparian owner owns
the bed of the stream, subject only to navigation, he has the
exclusive right of fishery and has the right to exclude any
other person from fishing within his boundaries. This right of
the riparian owner is subject, of course, to the right of the state
to regulate his use and enjoyment of the right of fishing in
such manner as to protect the concomitant rights of other own-
ers of the banks of the stream."
The theory of the law is quite simple. If he owns the soil
he may exclude others from it, precisely as the owner of land
may prevent strangers from trespassing upon his close, even
though they are in pursuit of game which they may lawfully
take in places where they have a right to be. The custom
exists quite universally to permit fishing in private ponds, but
such custom amounts only to a license, which may be with-
drawn. Such a license will, until revoked, defeat an action of
trespass.”
SEC. 584. Modes of Acquisition.—There are various ways of
acquiring title to personal property. Using the word “property”
in the broad sense in which we have heretofore regarded it,
personal property may be acquired by grant, by contract, by
f
the same extent that they have been
used and enjoyed for centuries in
England. Indeed, it could not well
have been otherwise; for the men
who first formed the English settle-
ments could not have been expected
to encounter the many hardships
that unavoidably attended their em-
igration to the new world, and to
people the banks of its bays and
rivers, if the land under the water
at their very doors was liable to im-
mediate appropriation by another as
private property; and the settler
upon the fast land thereby excluded
from its enjoyment, and unable to
take a shell-fish from its bottom, or
fasten there a stake, or even bathe
in its waters, without becoming a
trespasser upon the rights of another.
The usage in New Jersey has, in this
respect, from its original settlement,
conformed to the practice of the
other chartered colonies. And it
would require very plain language
in these letters-patent to persuade
us that the public and common right
of fishery in navigable waters which
has been so long and so carefully
guarded in England, and which was
preserved in every other colony
founded on the Atlantic borders,
was intended, in this One instance,
to be taken away.”
1 Id.; Holyoke Co. v. Lyman, 15
Wall. 500; Parker v. People, 111 Ill.
581.
2 Marsh v. Colby, 39 Mich. 626,
45
704. THINGs. [$ 585.
descent, by testament or devise, and by forfeiture. These vari-
Ous modes are classed as acquisition by descent and by pur-
chase. The only way to acquire by descent is through an
intestate estate; all other modes are regarded as by purchase.
It is sometimes said that title may begained in personal prop-
erty by occupancy, but strictly speaking that cannot be.
Statutes of limitation may bar a right to bring an action, but
such statutes may or may not exist in a particular state; and in
the absence of some statute, no length of time will bar the re-
covery of one's goods by an action.
There are other modes of reclaiming property than by an
action. The owner has a right to retake by his own hand,
and a statute of limitation against bringing an action will not
bar his right of recaption; so that as to personal property there
can be no prescriptive title.
Marriage, as we have seen, merges the personality and thereby
transfers the title to personal property.
It is sometimes said that title is acquired by judgment and
by bankruptcy, but in a proper sense this is not true. No court
of law or equity ever undertakes directly by its decrees to
transfer title.
The court may decree that, according to the law and the
evidence, the title is in one or more of the parties, or that he
shall convey because he has agreed to, or that the property be
sold; but in that case it is the conveyance or grant in the one
instance, and the execution of the judicial sale in the other,
which transfers the title. So that after all the two great modes.
of acquisition are descent and purchase; and the methods of
transfer most frequently encountered by the lawyer in actual
practice are by contract and by conveyance."
SEC. 585. The Function of Contracts.-Contracts are never
entered into for the mere purpose of agreeing: some other
end is had in view; the contract being the mere preliminary in-
strument for the accomplishment of the desired end.
Primarily speaking, the only end directly accomplished by
a mere contract is the imposition of an obligation or obliga-
tions upon one or both of the parties in favor of the other or
1 Equity acts in personam. The law title. See Langdell, Summary of Eq.,
courts may restore that which be- $ 40.
longs to a suitor, but never transfer
§ 585.] THINGS. 705.
each; but even in this sense a contract is one of the recognized
methods of acquisition.” And it is well understood that by a
mere contract an equitable interest may be acquired which a
court will require to be specifically performed. In fact, it is
by means of contracts, the meeting of minds in some form of
proposal and acceptance, that by far the greater amount and
interest in property is acquired, transferred and extinguished.
Commercial intercourse is carried on almost entirely by con-
tract. -
Persons are the actors, contracts the medium, things the sub-
jects of traffic.
It is only by resorting to a legal fiction that a tort is allowed
to be the means of transferring title, and this fiction takes the
form of implying or creating a contract or promise from the
acts of one party, but only at the election of the owner, as a
means of facilitating a remedy.”
Either through the medium of a contract” of purchase, or by
the law of descent, all property is transferred. From this the
importance of the subject of contracts is apparent. In every
1 See, Anson on Contracts (2d ed.),
p. 9. -
2 Mr. Justice Washington approves
the statement of Powell in his work
on Contracts, that “the regular effect
of all contracts is on One side to a C-
quire and on the other to part with
some property or rights, or to abridge
or to restrain natural liberty by bind-
ing the parties to do or restraining
them from doing that which before
they might have done or omitted.”
T)artmouth College Case, 4. Wheat.
656. -
Mr. Smith, a lawyer distinguished
for his scientific attainments in the
field of jurisprudence, says: “Nearly
all rights of property originate in
contract, and the law of property is,
therefore, in the main, but an appli-
cation of the principle of contract.”
He adds: “This has been remarked
by Mr. Bingham, the only author I
Know who seems to have appreciated
the fact. ‘Individual rights to land,”
he says, “depend upon the application
Of contracts, and can be sustained
On no other foundation. It follows,
therefore, that in all or most cases of
dispute in regard to individual prop-
erty in land, the questions that may
arise are questions concerning con-
tracts.” (Law of Real Property, 10.)”
Law of Private Right, p. 12.
The idea is analogous to that ex-
pressed by Chief Justice Marshall,
that a corporation is but a means
to an end. “The power of creating
a corporation, though appertaining
to Sovereignty, is not . . . a great
substantive and independent power.
. It is never the end for which
other powers are exercised, but a
means by which other objects are
accomplished.” McCulloch v. Mary-
land, 4 Wheat. 316.
3 Andrews' Stephen's Pl., 52 et seq.
4 Charters or franchises are called
estates and property acquired by
contract. Thompson v. People, 23
Wend. 579–84.
706 TEIINGS. [$ 586.
treatise upon personal property, real estate, sales, bailments, or
bills and notes, the general features of the law of contracts are
stated or assumed to be understood."
These considerations render it indispensable that, at the be-
ginning of the treatment of the law of things, the subject of
contracts should be introduced and explained. -
Method of Treatment.—Regarding contracts as an instrument
in the accomplishment of their objects, the method pursued will
be to present the general principles which apply to all contracts
universally, leaving to a separate place, in logical sequence, the
peculiar features of contracts of sale, insurance, bailments, com-
mon carriers, etc.
SEC. 586. Definition.—The term “contract” has been very
frequently, and in a general way acceptably, defined.
Parsons says that a contract is an agreement between two
or more parties for the doing or not doing of some specific
thing.”
Story says a contract is a deliberate engagement between
competent parties, upon a legal consideration, to do or abstain
from doing some act.”
Agreement and obligation are the two important elements
which appear in these definitions.”
1 In confirmation of this it will be
seen that the law of contracts falls
under the denomination “Rights of
Things” in Blackstone's Commenta-
ries, and “Law of Personal Property"
in Kent's Commentaries. Conversely,
Smith's Mercantile Law treats of
little else than contracts, and Par-
sons on Contracts is devoted almost
entirely to the acquisition, enjoyment
and possession of things as affected
by contracts. .
21 Parsons on Contracts, 5. Black-
stone and Kent add the element of
consideration, 2 Blk. Com. 446; 2
Rent, 449.
3 Story on Contracts, 1. See Justus
v. Lang, 42 N. Y. 493. -
4 Mr. Justice Washington in his
opinion in the Dartmouth College
case, says: “What is a contract? It
may be defined to be a transaction
between two or more persons, in
which each party comes under an
obligation to the other, and each re-
ciprocally acquires a right to what-
ever is promised by the other. Powell
on Cont. 6. Under this definition,
says Mr. Powell, it is obvious that
every feoffment, gift, grant, agree-
ment, promise, etc., may be included,
because in all there is a mutual con-
sent of the minds of the parties con-
cerned in them upon an agreement
between them respecting some prop-
erty or right that is the object of the
stipulation. He adds that the in-
gredients requisite to form a con-
tract are parties, consent, and an
obligation to be created or dissolved.
These must all concur, because the
regular effect of all contracts is, on
one side, to acquire, and on the other
to part with, Some property or rights;
§ 586.] THINGS.
707
We have seen that the Romans sometimes called laws “com-
mon agreements.” From this it is easily understood how cus-
toms become a part of the contracts of individuals. ;
While the generic term “agreement” or “consent’’ is com-
mon to all conventions, the assent which makes an element of
a contract must be some specific, voluntary act in relation to
a specific, certain or ascertainable person, and this distinguishes
the contractual agreement from any other."
The essential elements of an enforceable contract are the par-
ties, the assent, sufficient consideration, proper subject-matter and
due form. & -
A contract, then, is an agreement between competent parties
upon sufficient consideration, in accordance with the forms of
law, by which some, or all, are bound to do or forbear to do a
particular thing.” “. .
That portion of the definition requiring the contract to be
according to the forms of law is not generally found in defini-
tions; but in many instances, although every other element
appears, but the form is lacking, the law refuses to attach to
the transaction the vinculum juris, the obligation or bond of
the law, and such a contract is not enforceable in the courts.”
Contracts are primarily classified, on account of form, as
specialties and parol, or simple contracts; * on account of a dif-
ference in nature, as eſcecuted and evecutory. These will be
treated further on.
Contracts of Record, so-called.—There are other obligations
that partake of the nature of contracts, such as judgments, re-
cognizances and statutes merchant, as they were called in the
English law, which were sometimes denominated contracts of
record. These lack some of the elements of ordinary con-
tracts, and the element of Voluntary assent is present in them
or to abridge or to restrain natural
liberty, by binding the parties to do,
or restraining them from doing, some-
thing which before they might have
done or omitted.” Dartmouth Col-
lege v. Woodward, 4 Wheat. 517.
1 Anson on Contracts (2d ed.), 10;
Clark v. Great N. Ry. Co., 81 Fed.
Rep. 282.
2See the language used in the fol-
lowing cases: Dartmouth College v.
Woodward, 4 Wheat. 656; Loaiza v.
Supreme Court, 85 Cal. 11: 20 Am. St.
Rep. 197; Clark v. Great N. Ry. Co.,
81 Fed. Rep. 282.
8 Anson on Contracts, 10.
4 Rann v. Hughes, 7 T. R. 846, note.
708 THINGS. f
[$ 587.
only in a very forced and obscure way. Such obligations are
not within our present treatment." •
The common law allows an action in form ea contractu upon
a judgment of a court of record, because, as it is said, the law
implies a contract to pay it, from the fact that there is a legal
obligation to do so, irrespective of whether the transaction had
its origin in tort or in agreement.” g -
SEC. 587. Parties.—There must be two parties, or two defi-
nite sets of parties, and this element distinguishes the political
Covenant which exists between the individual and the com-
munity in reference to his conduct, from those private agree-
ments which pass under the name of contracts.”
There must be two independent minds.
A man cannot con-
tract with himself even in different capacities."
It is essential that both parties understand who the parties
I Louisiana v. Mayor of New Or-
!eans, 109 U. S. 285.
Statutes merchant and staple are
frequently mentioned in English
books as contracts of record. These
were really acts fixing a local pro-
Cedure for the enforcement of debts
between merchant traders. In the
time of Edward I., at Acton-Burnett
a law was enacted that a creditor
might bring his debtor before the
mayor of York, London or Bristol,
and require of him a recognizance, or
writing obligatory, fixing the amount
of the debt. These were enrolled or
recorded, and on default, without
further process, the mayor caused
summary sale of the visible property
of the debtor, or, in default of goods,
the recognizance was sent to the
chancellor, and, if nothing was found,
the debtor might be imprisoned.
This statute was re-enacted (13 Edw.
III.), and was called the Statute of
Merchants, and extended to all the
large towns. The statutes staple
had a different object and required
the Staple products, namely, leather,
wool and lead, should be bought and
Sold only at certain places in Eng-
land and Ireland and on the conti-
nent, and prohibited British mer-
chants from exporting them. For
the convenience and protection of
those foreign merchants who were
obliged to come into England to buy,
they were not subject to the com-
mon law, but were authorized to re-
Sort to the law merchant. If both
parties were aliens, a jury of for-
eigners was provided. An amend-
ment of the 36 Edw. III., St. 1, 7, con-
fined the jurisdiction of the mayor
and constable under the statute to
acts of debt and contract between
merchants, and extended the recog-
nizance similar to the statute of mer-
chants. These recognizances became
of record; hence, probably, the desig-
nation contracts of record.
*Taylor v. Root, 4 Keyes, 344, cited
in dissenting opinion of Harlan, J., in
Louisiana v. Mayor, supra.
8 Anson on Contracts, p. 6; Canter-
berry v. Miller, 75 Ill. 355.
4 Dexter v. Hall, 15 Wall. 9; Olney
v. Howe, 89 Ill. 556; Eastman v.
Wright, 6 Pick. 321; Michoud v.
Girod, 4 How. 503.
$ 588.] THINGS. 709
are, and that they assent to entering into contractual relations
with such parties."
Persons Under Disability.—The capacity of parties to con-
tract must generally be treated from the standpoint of disa-
bilities. -
All persons are presumed to be competent until the contrary
is shown, and it rests upon the protesting party to allege and
prove the incapacity.”
Incapacity may be general or particular, and may result from
physical or natural causes. A disqualification is quite differ-
ent from an incapacity. The former arises from a relation,
the latter exists as a part of the personality.
The persons incapacitated are principally infants, married
women, non compos persons, spendthrifts and seamen. Parties
under disqualification are persons holding some special relation
to a party or a subject, as agents, trustees, corporations, etc.
The limitations upon the powers of corporations to contract
are sometimes treated in this connection, but not logically so,
for the reason that the limitation is not, in the case of a corpo-
ration, a restriction of normal capacity, but a mere boundary
of granted power.”
SEC. 588. Infancy.—The law of most countries fixes arbi-
trarily, but with reference to utility as shown by experience,
the age of complete capacity to contract. At common law the
legal age of responsibility was twenty-one years. In some
states, by statute, a female is of age at eighteen.”
An infant may make a contract which is binding upon the
adult, but in general is not bound by it, even in the case of con-
tracts for necessaries. The obligation to pay arises not so much
from stipulation as from the implied legal liability based upon
the necessity of the situation and the benefit received.”
1 Winchester v. Howard, 97 Mass.
.304; Boston Ice Co. v. Potter, 123
Mass, 28; National Bank v. Hall, 101
'U. S. 43; Taylor v. McClung, 2 Houst.
(Del.) 24; Barnes v. Barrow, 61 N. Y.
39.
2 C. & O. Ry. v. Mosby, 93 Va. 93.
*The subject has been treated
ºunder Ultra Vires, ante, secs. 469–70.
4 Stevenson v. Westfall, 18 Ill. 209.
*It was formerly held that if an in-
fant engaged to do a specific work
by an entire contract he could not
recover for part performance (McCoy
v. Hoffman, 8 Cow. 84; Weeks v.
Leighton, 5 N. H. 443), but these cases
are overruled. The contract is not
obligatory and does not bind in any
particular. Medbury v. Watrous, 7
Hill, 110; Gibbney v. Hayden, 110
Mass. 137; Tenn. Mfg. Co. v. James, 91
Tenn. 154; 15 L. R. A. 211, and note.
710 TELINGS.
[$ 588.
The contracts of infants are not void because of infancy, but
only voidable." The distinction between void and voidable
should always be borne in mind. A thing that is void is as
though it never had been. A thing that is voidable may affect
rights and interests.
The only contract binding on an infant is the implied contract
for necessaries.” The only act which he is under absolute inca-
pacity to perform is the appointment of an attorney. All other
acts are voidable at his election.” A suit for a breach of prom-
ise to marry cannot be based on the promise of a minor.”
By combining the elements of a tort with the elements of a
contract, the infant may become liable to an action of trover
for converting another's goods to his own use after he has re-
ceived them as bailee, or where he has obtained them fraudu-
lently, with intention not to pay for them, although they are in
such cases delivered to him on a contract.” His fraud taints
the transaction and he is bound for his torts."
The infant's defense on the ground of incapacity is a per-
sonal privilege, which only he or his legal representatives may
take advantage of." This is an exception to the rule that con-
1 Henry v. Root, 33 N. Y. 526; Cole
v. Pennoyer, 14 Ill. 158; Jackson v.
Ring, 4 Cow. 207; 15 Am. Dec. 354,
note.
? What are necessaries will depend
on the condition and circumstances
in life of the infant. An education
of a character in keeping with his
position is looked upon as a necessary.
Price v. Sanders, 60 Ind. 310; Turner
v. Gaither, 83 N. C. 357; 35 Am. Rep.
574.
8 Cole v. Pennoyer, 14 Ill. 158. See
opinion in Dexter v. Hall, 15 Wall.,
at p. 26. An infant may give an at-
torney parol authority to transact
business, and such contract is void-
able. Whitney v. Dutch, 4 Mass. 463.
4 Hunt v. Peake, 5 Cow. 475.
5 Vasse v. Smith, 6 Cranch, 226;
Wallace v. Morse, 5 Hill, 391; Homer
v. Thwing, 3 Pick. 493; Badger v.
Phinney, 15 Mass. 359; 8 Am. Dec.
105; Mathews v. Cowan, 59 Ill. 341;
Campbell v. Perkins, 8 N. Y. 440;
Walker v. Gray, 1 Gray, 506. Where,
however, the real injury is non-per-
formance of contract, though this is
stated as inducement to tort, there
can be no recovery against the in-
fant. Cooley’s Elements of Torts, 30.
The form of action does not deter-
mine the liability.
6 Infancy is no defense to an action
for seduction. Fry v. Leslie, 87 Va.
269. And an infant cannot escape
liability for a tort on the ground that.
it was committed by the command
of a parent. Scott v. Watson, 46 Me.
362; 74 Am. Dec. 457. Infants are lia-
ble for torts performed in their be-
half and to which they assent. Sikes
v. Johnson, 16 Mass. 389.
7 Beardsley v. Hotchkiss, 96 N. Y.
211. The next friend of an infant, or
his attorney, has the power and duty
to claim rights, but not to waive
them. C., R. T. & P. R. Co. v. Ken-
nedy, 70 Ill. 364.
§ 588.] TEIINGS.
711.
tracts must be mutually binding to bind either. The courts
disagree as to whether a fraudulent representation as to his age
is such a tort as will bind him to his contracts."
Infants’ Contracts, When and How Avoided.—Acts performed
with judicial solemnity and of record must be avoided by pro-
cedure of equal solemnity and during his minority.”
Conveyances of real property by an infant cannot be affirmed
or avoided until he attains his majority, although the infant
may obtain the benefit of the use of the land in such cases.”
An infant avoiding a contract must return what he has ob-
tained under it if he have it in hand, but if during minority he
has wasted it, he may still avoid the contract and recover what
he has paid on it, and the adult is without remedy." It is only
when he still has the consideration which he received in specie
that he will be compelled to return it.”
This is a question of some nicety and one upon which the
courts are not in harmony. Where the contract is entirely
free from fraud and unfairness, it seems to be settled in Eng-
land that he cannot recover back more than the difference be-
tween what he has paid and what he has received;" and quite
a number of our decisions are in accord with the English doc-
1 That it is not, see Nash v. Jewett,
61 Vt. 501; 4 L. R. A. 561; Carpenter
v. Carpenter, 45 Ind. 142. Contra,
cases in note to 4 L. R. A. 561.
Cooley, Elements of Torts, 30.
2 Tucker v. Moreland, 10 Pet. 71;
Breckenridge v. Ormsby, 1 J. J. Marsh.
236; 19 Am. Dec. 76.
3 Root v. Stafford, 7 Cow. 179; Bool
v. Mix, 17 Wend. 119. It may be re-
garded as well settled that all execu-
tory contracts and all contracts re-
specting property which are executed
by delivery of some article may be
avoided, both before and after major-
ity, but conveyances of real prop-
erty cannot be avoided before that
time. Taylor on Infancy and Cover-
ture, 69. The infant may avoid his
conveyance at any time within the
term of the statute of limitations
after his majority. Mereinertness will
not bar his right to avoid, unless ac-
See
companied by affirmative acts mani-
festing an intent to affirm. Sims v.
Everhardt, 102 U. S. 300. And see
Donovan v. Ward, 100 Mich. 601.
Other cases, however, hold that a rea-
Sonable time, depending on the cir-
Cumstances of each particular case,
is all that is necessary for the infant's.
protection. See Goodnow v. Empire.
Lumber Co., 31 Minn. 468; 47 Am. Rep.
798. Any deliberate act by which the
infant, after reaching majority, ac-
cepts a benefit or recognizes the va-
lidity of his deed, will be considered
an affirmance.
4 Riley v. Mallory, 33 Conn. 201;
Todd v. Clapp, 118 Mass. 495; Engel-
bert v. Pritchett, 40 Neb. 195; 26 L.
R. A. 177, and note; Chandler v. Sim-
mons, 97 MaSS. 508.
5 Reynolds v. McCurry, 100 Ill. 356.
6 Holmes v. Blogg, 8 Taunt. 508;
Valentini v. Canali, 24 Q. B. D. 166.
712. TEIINGS. [$ 588.
trine," but it is believed that the majority of the courts of
America adopt the rule laid down above.
Ratification of Contracts Made During Infancy.—To consti-
tute a ratification there must be a voluntary promise” to per-
form or acts unequivocally evincing an intention” to retain
the advantages of the contract. A mere acknowledgment is
not enough.” The distinction is made that, where the contract
is executory, a new promise is necessary, but in the case of an
executed contract ratification may be inferred from acts and
circumstances.” .
It has been held that the new promise must be made with
knowledge that he is not already bound,” but the better opin-
ion is that after he is of age there is no occasion for granting
Jhim such indulgence." The rule regarding an infant’s deeds of
1 Riley v. Mallory, 33 Conn. 206;
Adams v. Beall, 67 Md. 53; Johnson v.
Northwestern Mut. Life Ins. Co., 56
IMinn. 365.
2 Henry v. Root, 33 N. Y. 526.
3 Ratification is always a question
of intention. Durfee v. Abbott, 61
Mich. 471.
41 Parsons on Contracts, *323. The
supreme court of Minnesota has
formulated the following rules as to
affirmance and disaffirmance of in-
fants’ contracts, excluding contracts
for necessaries: 1st. In so far as the
contract is executory on the part of
the infant, he may always disaffirm.
2d. If partly performed by him, but
wholly executory on the part of the
adult, and the minor having received
no benefit, he may recover back what
he has parted with. 3d. Where the
contract has been wholly or partly
performed on both sides, the infant
may always rescind and recover back
what he has paid upon restoring
what he has received. 4th. On ar-
riving at full age, he may avoid a
conveyance of real estate without
being required to place the grantee
in statu quo. 5th. Where the con-
tract has been wholly or partly per-
formed on both sides, the infant
must always restore what he has re-
ceived in so far as he has it, if he
sues to recover back what he has
paid. 6th. The court will always
grant an infant relief where the
other party has been guilty of fraud
and undue influence. The court
points out that these rules are not in
harmony with the rule in most of
the states. Johnson v. Northwestern
Mut. L. Ins. Co., supra; ante, sec. 588.
5 Petty v. Rosseau, 94 N. C. 355.
6 Smith v. Mayo, 9 Mass. 62; 6 Am.
Dec. 28; Ford v. Phillips, 1 Pick. 202.
7 Schouler's Dom. Rel. 590; Morse
v. Wheeler, 4 Allen, 570; Anderson v.
Soward, 40 Ohio St. 325. The ratifi-
cation does not make the contract
good from the beginning. Thornton
v. Illinworth, 2 B. & C. 824; Ford v.
Phillips, supra. And an action can
be maintained on a ratification made
only before the institution of pro-
ceedings. Freeman v. Nichols, 138
Mass. 313. The existence of a ratifi-
cation is a question of fact to be de-
termined as any other fact in issue.
Irvine v. Irvine, 9 Wall. 617; Lynch
v. Johnson, 109 Mich. 640. A few
states, adopting the English act
known as Lord Tenterden’s act, pro-
vide that no action can be main-
tained unless the ratification is in
writing.
§§ 589, 590.] THINGS. 713
realty is stated in the preceding section. Like his other con-
tracts, except such as are for necessaries, his deeds are not
void but voidable, and are of full force and effect unless dis-
affirmed. -
SEC. 589. Seamen.—There is one class of citizens against
whom there seems to be recognized a distinction not applicable
to another class of persons, namely, seamen. Partly on ac-
count of the well-known improvidence of seafaring men, and
partly on the ground of what is deemed an essential protection
to the interests of maritime owners, the law holds the class
known as seamen, notwithstanding they may be suº juris and
adult, under a sort of disability in reference to contracts, and
requires that persons dealing with them shall exercise a greater
degree of fairness, and require of the seamen a less degree of
diligence than is required of most adults.
On the other hand, the seaman’s contract is more nearly al-
lied to the old doctrine of master and servant or servitude than
any other contract known to our law."
SEC. 590. Married Women.— Sufficient has been heretofore
said upon the subject of the effect of marriage on the ability
of a woman to contract, and her disability in this regard may
be left by reference to what has preceded.
Modern statutes in some states render both the husband and
wife liable for contracts entered into by either for what are
termed family expenses,” and in such cases it is now quite gen-
erally held that, although the original contract may have been
oral, either has the right to change the form of the contract
so as to take the case out of the statute of limitation,” and both
are bound as though assenting, or even in the case of a refusal
to assent; but in the latter case it has been held that the Sup-
plies must be necessaries.”
1 Parsons on Contracts, ch. XIX,
sec. 3. Quite an exhaustive discus-
sion of seamen’s contracts is found in
Smith’s Merc. Law, ch. IX. See Rob-
ertson v. Baldwin, 165 U. S. 275.
2 Iowa, Illinois, Oregon and Mis-
souri have such statutes. For con-
struction, see Tawrence v. Simmons,
24 Iowa, 80; Smedley v. Felt, 41 Iowa,
588; Von Platen v. Krueger, 11 Ill.
App. 627; Illingsworth v. Burley, 33
Ill. App. 394; Bedsworth v. Bowman,
104 Mo. 44; Dodd v. St. John, 22 Oreg.
250; 15 L. R. A. 717, and note.
3 Smedley v. Felt, supra.
4 Devendorf v. Emmons, 66 Iowa,
698; Haggard v. Holmes, 90 Iowa,
308.
714 ** THINGS. [$ 591.
SEc. 591. Persons Non Compos Mentis.-The term “non
compos mentis’ is frequently used by courts and writers as in-
cluding only lunatics or madmen. It is properly used to in-
clude all persons of unsound mind whereby the understanding
is lost or impaired, including insane persons and persons re-
duced in understanding by temporary drunkenness, sickness or
any decay of the mind.
Mon compos mentis, in the eye of the law, is that state of the
mental faculties which renders the subject incapable of acting:
rationally in the ordinary affairs of life, and to be effectual as
incapacity to contract it must render the person incapable of
understanding the effect and consequences of his act. It need
not be such a total obliteration of the faculties as prevents the
party from reasoning upon all subjects, nor yet the want of
power at all times, upon correct premises, to arrive at accurate
conclusions, but that want of power which prevents a person
from reasoning or understanding the relation of cause and
effect.”
It is well understood that in many forms of insanity the ca-
pacity to transact business is entirely unaffected. In such
cases the insanity cannot be set up to avoid a contract.” It is
also common for lunatics to have lucid intervals, and the law
has always held that a contract entered into during such a
period is valid.
Every one is presumed to be sane until the contrary is shown,”
but derangement or imbecility Once shown is presumed to con-
tinue until the contrary appears.”
Jºetent of Disability.—The old English doctrine promulgated
by Lord Coke in the Beverly case, that a man could not be
heard to stultify himself by pleading his own mental inca-
pacity, is not followed in this country or in England."
1 The distinction between the in- 51 Greenleaf, Ev., sec. 42; Emery v.
capacity on account of infancy and Hoyt, 46 Ill. 258; Trish v. Newell, 62
insanity is clearly pointed out in Ill. 200.
Dexter v. Hall, 15 Wall. 9. 6 Gore v. Gibson, 13 M. & W. 623;
2 Searle v. Galbraith, 63 Ill. 272; Owings’ Case, 1 Bland, 370; 17 Am.
Bliss v. Com. & P. R. Co., 24 Vt. 24; Dec. 311; Jackson v. King, 4 Cow.
Emery v. Hoyt, 46 Ill. 260. 207; 15 Am. Dec. 354; Dexter v. Hall,
8 Searle v. Galbraith, supra. 15 Wall, 9.
4 See Pomeroy's Case, 117 Mass. 143;
Guitig v. People, 66 Ind. 94.
§ 591.] THINGS. 715
Mere weakness of mind will not avoid a contract, unless it
amounts to an absolute incapacity to understand; but when
coupled with inadequacy of consideration, or other evidence of
fraud, imposition or over-reaching, feebleness may itself lessen
the necessity for full and complete evidence of fraud.”
Contracts, whether Void or Voidable.— There is much contra-
riety of opinion as to whether contracts of persons non compos
mentis are void or voidable merely. There is much authority
in favor of the rule that the deed or other contract of an insane
person is voidable rather than Void.” -
As to conveyances, i. e., deeds, the weight of authority is in
favor of the rule that they are absolutely void.* The confusion
in the decisions is directly traceable to an error in Blackstone
in this respect, he failing to distinguish between deeds and or-
dinary contracts. Mr. Justice Strong, in Deater v. Hall, points
out the error, the true rule, and the reasons for the distinction.”
The transfer of negotiable paper by an insane person is held
void in Michigan." - *
The distinction between deeds of conveyance and simple con-
tracts, and between the latter when executed or executory,
must be constantly regarded. Where the contract was made
in the ordinary course of business, and is fair and reasonable,
and has been fully executed, and the enfeebled mental condi-
tion of the one party was unknown to the other, and the par-
ties cannot be put in statu quo, there can be no relief." Those
1 Graham v. Castor, 55 Ind. 559. any purpose without capacity? 15
2 C. & O. Ry. v. Mosby, 93 Va. 93.
3 Ingraham v. Baldwin, 9 N. Y. 45;
Chew v. Bank of B., 14 Md. 299; Cur-
rier v. Sears, 4 Allen, 336; Hovey v.
Hobson, 53 Me. 453; Breckinridge v.
Ormsby, 1 J. J. Marsh. 236; 19 Am.
Dec. 71; Nichol v. Thomas, 53 Ind.
42; Fitzgerald v. Reed, 9 S. & M. 94;
Elston v. Jasper, 45 Tex. 409; Eaton
W. Eaton, 37 N. J. L. 108; Allen v.
Berryhill, 27 Iowa, 540.
4 Van Deusen v. Sweet, 51 N. Y.
578; Dexter v. Hall, 15 Wall. 9.
5 His reasoning is, how can there
be a contract without any assent,
and how can there be an assent for
Wall. 2. See note in 15 Am. Dec. 365.
In some states it is provided by stat-
ute that after an inquisition in which
insanity is found, contracts of the
person shall be absolutely void. So a
bank will be liable for paying the
check of one so adjudged. Am. Trust,
etc. Co. v. Boone, 29 S. E. Rep. 182; 40
L. R. A. 250. Before such finding the
contracts of Such a one are voidable
only. Scanlon v. Cobb, 85 Ill. 296;
Burnham v. Kidwell, 113 Ill. 429;
Runnells v. Gerner, 80 Mo. 474.
6 Hannah v. Sheldon, 20 Mich. 278.
7 Wilder v. Weakley's Estate, 34
Ind. 181; Winback v. First Nat. Bank.
71.6 THINGS. [S$ 592, 593.
courts holding the party liable to respond base the liability
not so much on the contract as upon the benefit that he can-
not restore. It is the benefit received which entails the lia-
bility."
Knowledge or information which would lead one to believe
in the incapacity may constitute an important element in the
case. As to contracts for necessaries, persons non compos mentis
stand upon like grounds with infants,” and while they are not
liable for crimes, they are liable for their torts.
SEO. 592. Intoxicated Persons.—The rule formerly was that
intoxication would not relieve.” Knowingly dealing with a
drunken person raises the presumption of fraud, and it devolves
upon the other party to show good faith and a contract rea-
sonably beneficial to the intoxicated person.” .
To render a contract voidable, the party must be so com-
pletely intoxicated as to drown the reason, memory and judg-
ment.”
SEC. 593. Sickness.-The extent to which illness must go, in
order to destroy the capacity to consent, is a question upon
which no definite rule can be given. It is clear that the tem-
porary disability should be at least equal to the disability of
persons non compos ments.
It is well understood that extreme physical debility may
leave unimpaired the faculties of the mind, but in most cases
it would require clear proof of mental capacity, where the pa-
tient was too weak to be able to take any physical part in the
execution of a contract, unless his sickness was in the nature
of paralysis."
97 Pa. St. 509; Burnham v. Kidwell,
113 Ill. 425; Eaton v. Eaton, 37 N.
merely by reason of lack of age.
Sawyer v. Lufkin, 56 Me. 308.
J. L. 108.
1 Lincoln v. Buckmaster, 32 Vt. 652;
Matthiessen v. McMahon, 38 N. J. L.
536. -
2 They may contract for neces-
saries suitable to their condition in
life. And in interpreting the word
“necessaries” courts will be more
liberal with regard to contracts of in-
dividuals of this unfortunate class
than with persons incapacitated
32 Kent, 573.
4 Joest v. Williams, 42 Ind. 565; 13
Am. Rep. 377; Gore v. Gibson, 13 M.
& W. 623.
5 Shackleton v. Sebree, 86 IIL 616;
Bates v. Ball, 72 Ill. 108; Johns v.
Fretchey, 39 Md. 258; Longhead v.
Coombs, etc. Com. Co., 2 Mo. App.
1017.
6 See Wilson v. Bigger, 7 Watts &
S. 111.
§§ 594, 595.] THINGS. - 717
Illiteracy is by no means an incapacity to contract. Proof
of illiteracy may affect the burden of proof somewhat, but only
bears on the question of assent."
SEC. 594. Aliens.—The question of alienage goes to the right
to hold and transmit property under the rules of international
law. It is not analogous to personal incapacity.
SEC. 595. Assent of the Parties.—Before there can be a con-
tract there must be a voluntary meeting of minds on all the
terms of the contract.”
Proposal and Acceptance.—It is said that the assent of par-
ties is brought about by some form of proposal and acceptance,
but this expression is rather more formal than natural, because
in the case of implied contracts, whether they arise from meri-
torious or tortious acts, it is sufficient to understand that the
assent arises from conduct to which the law attaches the obli-
gations and consequences of a contract.” 3.
It is never required that assent of the parties be in express
Words, but it is necessary that the assent be communicated by
each to the other.” If services are performed by one man for
another under circumstances showing that he requested and
accepted the same, the transaction is treated as a contract.
Thus, if he stand by and see another performing beneficial
labor for him, the law will generally infer a promise to pay the
reasonable value of the services.”
If, however, the labor is done at another's request, the mere
fact that it benefits a third person who is cognizant of the labor
and the benefit does not imply a promise." Mere benefit will
not raise an assumpsit, i. e., a promise." t
If one makes a proposition to another which is acted upon
and the matters proposed be accomplished, the acceptance by
acts is sufficient.” But a proposal in form that, unless the per-
son to whom the offer is made acts or declines to act, the offer-
ing party will consider a contract to exist, will not suffice. -
There must be a real offer, however, before another party
1 Selden v. Myers, 20 How. 506. 5 Huck v. Flentye, 80 Ill. 261; De
2 Dexter v. Hall, 15 Wall. 9; Olney Wolf v. City of Chicago, 26 Ill. 446.
v. Howe, 89 Ill. 557; Hartford & N. H. 6 Walker v. Brown, 28 Ill. 378.
Ry. Co. v. Jackson, 24 Conn. 517. 7 Boston Ice Co. v. Potter, 123 Mass.
3 Bradbury v. Helms, 92 Ill. 35; An- 28. See “Consideration.” -
drews' Stephen’s Pl., §§ 30, 31, 33. 8 Kinder v. Brink, McCormick &
4 Frith v. Lawrence, 1 Paige Ch. Co., 82 Ill. 376.
434. -
'718 THINGS. [$ 595.
has the right to act. A mere advertisement soliciting business
and stating the terms will not generally constitute a contract,
but only an invitation to contract."
Jeewards.-If, however, the advertisement is clearly intended
to be acted upon without further negotiations, the performance
of a condition will constitute an acceptance.”
Acceptance.— The acceptance of a proposal must be upon the
identical terms of the proposal.” The minds of the parties must
meet on the same subject-matter in the same sense.”
A partial acceptance, or acceptance ori condition, or which
varies in any particular the terms, constitutes a rejection and
a new proposal.” º
Assent Where Parties Are Wot in Direct Personal Communº-
cation.— In determining the assent to a contract conducted by
correspondence, it is apparent from the general proposition
that a proposal of an offer may be withdrawn at any time be-
fore acceptance, that there must be a time fixed by law as a
point when the contract is consummated. This time may not
always coincide with the state of the mind of either or both
the parties." Much of what is said in reference to this subject
will apply to contracts in general. -
Where an offer is made by mail, it may be accepted by post-
ing an answer within a reasonable time, or in the manner in-
dicated by the proposal, or by communicating in some custom-
ary mode."
1 Moulton v. Kershaw, 59 Wis. 315;
48 Am. Rep. 516; McConnell v. Brill-
hart, 17 Ill. 361; Howe v. O’Malley, 1
Humph. 287; 3 Am. Dec. 693; Anson
on Contracts (2d ed.), Knowlton, p. 21.
2 The offer of a reward may be
withdrawn, like any other offer, be-
fore rights have accrued under it.
Shuey v. United States, 92 U. S. 73.
If the terms are complied with in
ignorance of the reward, the courts
are not in harmony as to the right
to recover. That there may be a re-
covery, see Russell v. Stewart, 44 Vt.
170. Contra, Howland v. Lounds, 51
N. Y. 604,
3 Estes v. Furlong, 59 Ill. 300; Vir-
ginia Hot Springs Co. v. Harrison, 93
Va. 569. -
4 Hazzard v. New England Ins. Co.,
1 Sumn. 282; Gill Mfg. Co. v. Hurd,
18 Fed. Rep. 673; Peabody v. Dewey,
153 Ill. 657. Unless accepted on the
terms on which it is made an offer
imposes no obligation. Tilley v. Chi-
cago, 103 U. S. 155.
5 First Nat. Bank v. Hale, 101 U. S.
43; Eliason v. Henshaw, 4. Wheat.
225.
6 Adams v. Lindsell, 1 B. & A. 681.
7 Maclay v. Harvey, 90 Ill. 525; 32
Am. Rep. 35, and note; Dana v. Short,
81 Ill. 468. Just what effect the postal
regulations allowing the Sender of a
letter to recall it before delivery
will have upon this proposition can
only be surmised.
§ 595.] THINGS. '719
If the letter conveying the offer is delayed in the mails, with-
out the fault of the person to whom the offer is made, he may
nevertheless accept the offer."
If the acceptance is duly posted, but is delayed or lost, and
consequently never reaches the person making the offer, the
contract is complete, if the usual mode of conveyance has been
resorted to, and the loss is without fault of the person accept-
ing.”
The acceptance completes the contract.”
Fiction as to Tºme of Assent.—The necessity for adopting
some point where the contract is complete, irrespective of the
actual state of mind, constitutes the essential point of distinc-
tion between the rule governing contracts by letter or telegram
and contracts of parties while in direct communication. The
distinction may be stated thus: Where the parties are in imme-
diate communication a proposal may be revoked without no-
tice; * but where the proposal is by letter or telegram, the
notice of a recall or revocation must reach the person to whom
the offer is made before acceptance.”
The whole doctrine of meeting of minds by an acceptance
of a proposal after a lapse of time rests upon the fiction that
the offer is renewed during every moment of time." No matter
how much or how little time has intervened between the offer
and acceptance, the Offer speaks as of the moment of accept-
ance." Where the parties reside in different states the contract
is made where it is accepted, and the law of the place of ac-
1 Maclay v. Harvey, supra, note in
32 Am. Rep. 51; Macktier v. Frith, 6
Wend. 103; Averill v. Hodge, 12 Conn.
438.
2 Maclay v. Harvey, supra, note in
32 Am. Rep. 40; Vassar v. Camp, 11
N. Y. 441.
3 Anson on Contracts, 11. The rules
which obtain in the English courts
are very tersely stated by Holland’s
Jur., p. 230.
4 Cooke v. Oxley, 3 Term Rep. 653;
Dickerson v. Dodd, 2 Ch. Div. 463.
*The leading English case is Cooke
v. Oxley, 3 Term Rep. 653. Story
criticises the case. Benjamin, in his
work on Sales, upholds it, and the
rule established by the case is gen-
erally upheld. Dickinson v. Dodds, 2
Ch. Div. 463.
*Anson on Contracts; Adams v.
Linsdell, 1 B. & Ald. 681.
7 Brauer v. Shaw, 168 Mass. 198,
disregarding McCullough v. Insur-
ance Co., 1 Pick. 278; Taylor v. In-
surance Co., 9 How. 390; Patrick v.
Bowman, 149 U. S. 411; Wheat v.
Cross, 31 Mā. 99: Sanford v. Howard,
29 Ala. 684; Holtzman v. Millaudin,
18 La. Ann. 25. Telegrams are, of
course, within the rule. Brauer v.
Shaw, supra; Cowan v. O’Connor, 2
Q. B. D. 640.
46
720 THINGS, [$ 596.
ceptance governs." Where goods are ordered by mail, shipping
the goods will be counted an acceptance.” -
SEC. 596. Assent Must be Real and Voluntary.— To affirm.
that assent must result from the intelligent volition of the mind
is but another way of asserting that there must be an assent.
Whatever misleads the mind or destroys the volition pre-
vents the reality of the apparent assent.
The law recognizes several distinct modes by which this as-
sent is prevented, and their constant recurrence with similar
typical incidents has occasioned their treatment under specific
designations or heads, such as fraud, duress, mistake, etc. -
A contract entered into through mistake or induced by mis-
representation or fraud or compelled by duress or undue influ-
ence is considered as lacking the quality of assent. ! -
Mutual mistake” as to the subject-matter, the consideration
or any of the terms of a contract" prevents the meeting of
minds.
In cases of mutual mistake neither party is guilty of any
wrong towards the other. There is simply a lack of a meeting
of the minds upon the same subject and in the same sense.
A mistake in order to be effectual must relate to a materiaſ
fact involved, and go to the essence of the contract." Mere
ignorance of collateral facts which affect value or utility do
not constitute such a mistake of fact as will avoid the contract.”
Mistake of Zaw.—It is a maxim that “ignorance of the law
excuses no one.” “
But this maxim in its terms and in its effect
1 State Mut. Ins. Co. v. Brinker C. 906, stated in Anson on Contracts,
Stove Co., 61 Ark. 1; 29 T. R. A. 712.
2 Crook v. Cowan, 64 N. C. 743.
3 Park Bros. Co. v. Blodgett & Co.,
64 Conn. 32; Nevius v. Tyunlap, 33
N. Y. 676. The mistake must be
mutual. Belt v. Mehen, 2 Cal. 159;
Page v. Higgins, 150 Mass, 27; Hearne
v. Insurance Co., 20 Wall. 488. That
is, each must suppose that the other
intended a thing or condition differ-
ent from what he, the latter, actually
had in mind. As where the contract
was for wool to arrive on the ship
Peerless, and there were two ships by
that name, One party meaning One,
the other the other, there was no con-
tract. Raffles v. Wichelhaus, 2 H. &.
*130.
4 Anson on Contracts, 166–67; Gib-
son v. Pelkie, 37 Mich. 380; Wood v.
Boynton, 64 Wis. 265.
* Rupley v. Daggett, 74 Ill, 351; Pea-
body v. Dewey, 153 Ill. 657.
6 Hunt v. Rousmaniere, 1 Pet, 1.
7 In Wood v. Boynton, supra, a.
jeweler bought a stone of a woman,
paying one dollar for it. It proved
to be a valuable diamond. Neither
knew its character or value, but
there could be no question as to
identity, and it was held that the
sale was binding. Cf. Sherwood v.
Walker, 66 Mich. 568.
8 Broom, Max. (8th ed.) 253, and
§ 596.] v. TELINGS. '721
is distinguishable from a mistake of law, that is, where one or
both parties are honestly mistaken as to the legal consequences
and effect of their act." Perhaps no case can be found where
it is squarely held that a mere mistake of law unmixed with mis-
representation, fraud, or other circumstances is a good ground
for relief;” but relief is frequently granted on this ground
where there is some unfairness of treatment or a fiduciary re-
lationship exists between the parties.” --
Misrepresentation as to Zaw.— A pure mistake of law is dis-
tinguishable from an intentional misstatement as to the law or
an innocent misrepresentation as to what it is. One amounts to
fraud, the other is misrepresentation; but in either case relief
may be had on the ground of mistake of law." All courts hold
that the proof of fraud, mistake or misrepresentation to annul
or change a written contract must be clear." -
Misrepresentation. Differs from Mistake and Fraud.—In mis-
representation there is not necessarily that mutuality of mis-
note. See Hunt v. Rousmaniere, 1
Pet. 1. This is a leading case to which
most subsequent cases refer, and it
should be carefully read.
1 Underwood v. Brockman, 4 Dana,
309; 29 Am. Dec. 407. In Berry v.
Am. Cent. Ins. Co., 132 N. Y. 49, Jus-
tice Brown says there can be no re-
lief solely on a mistake of law, but
a misrepresentation as to law is
ground for relief. -
2 Griswold v. Hazard, 141 U. S. 26.
3 Haveland v. Willets, 141 N. Y. 35.
4 Landsdown v. Landsdown, Mos-
ley, 364; Champlin v. Layton, 18
Wend. 407; Berry v. Am. Cent. Ins.
Co., supra. Mr. Lemuel A. Welles,
in an able article on “Mistake of
Law” in The Counsellor, says: “A
case which has gone farther by way
of dicta than any other in this coun-
try is Park Bros. & Co. (Limited) v.
The Blodgett & Clapp Co., 64 Conn.
32. Judge Torrance in that case said:
“The distinction between mistakes
of law and mistakes of fact is cer-
tainly recognized in the text-books
and decisions, and, to a certain ex-
tent, is a valid distinction; but it is
not practically so important as it
is often represented to be,” quoting
Markby, Elements of Law, secs. 268,
269. ‘The distinction between er-
rors of law and errors of fact, though
very emphatically announced, has
had very little practical effect upon
the decisions of the courts. The dis-
tinction is not ignored, and it may
have had some influence, but it is al-
ways mixed up with other consider-
ations which not infrequently out-
weigh it. The distinction between
error of law and error of fact is
therefore probably of much less im-
portance than is commonly supposed.
There is some satisfaction in this be-
cause the grounds upon which the
distinction is made have never been
clearly stated.” . . . ‘It is no longer
true, if it ever was, that a mistake of
law is no ground for relief in any
Case.’”
5 Palmer v. Insurance Co., 54 Conn.
501; Park Bros. Co. v. Blodgett Co.,
64 id. 31; Adams v. Robertson, 37
Ill. 45.
722 THING S. [$ 596.
apprehension, because one relies upon what the other states.
Strictly speaking, misrepresentation is innocent, and this dis-
guishes it from fraud, because, the moment the element of inten-
tional deceit enters, the character of the act changes from mere
mistake to misrepresentation or fraud." . -
A misrepresentation is a statement as to the existence of a
past or a present fact, and to be effectual should relate to a ma-
terial fact.”
In cases where one party has much the better means of know-
ing, and where the other party has the right to rely upon the
information, the party assuming to represent must be held to
warrant the truth of his assertions, even though innocently
made.” -
Fraud.—Assent induced by fraud renders the contract void-
able. To constitute fraud between the parties to a contract
there must be some active deception by statements known to
be false," or by suppressio veri,” or affirming as true what is not
known to be true, even though believed to be so." Mere in-
action, in the absence of a duty to act, Gannot constitute fraud,
and to be effectual as a means of relieving the acts or advices
relied upon must actually deceive and cause him to act."
Fraud must be also a false representation as to a past or exist-
& : vs re 8
ing thing.
A matter of opinion as to present value or the ex-
pression of future intention is not such a fact as may be relied
upon as a fraud.”
1 Moore v. Copp, 119 Cal. 429. See
Champlin v. Layton, 18 Wend. 407.
2 Orr et al. v. Goodloe, 93 Va. 263.
3 Anson on Contracts, 143; Grymm
v. Cyrd, 32 Gratt. 300. See Smith v.
Richards, 13 Pet. 26 (a leading case);
Martin v. Jordan, 60 Me. 531; Wither-
wax v. Riddle, 121 Ill. 140.
4 Cochran v. Cummings, 4 Dall. 250;
Cooley, Elements of Torts, 202.
5 Kidney v. Stoddard, 7 Met. 252;
Allen v. Addington, 7 Wend. 9;
Croyle v. Moses, 90 Pa. St. 250.
6 Braley v. Powers (Me.), 42 Atl. Rep.
362.
7 The law imposes on a party the
duty of imparting the facts regard-
ing the subject-matter which are
peculiarly within his knowledge.
Thus, if one sells unwholesome pro-
visions, knowing them to be so, but
without disclosing their condition,
this is a fraud. Emerson v. Brigham,
10 Mass. 197; 6 Am. Dec. 109. In
French v. Vining, 102 Mass. 132; 3
Am. Rep. 440, the doctrine was ap-
plied to a case where poisoned food
had been sold to be fed to domestic
animals. And if the seller knows the
purpose for which an article is bought
and that it is wholly unfit for the
purpose by reason of a hidden de-
fect, this also is a fraud. Maynard
v. Maynard, 49 Vt. 297.
8 Fish v. Cleland, 33 Ill. 240; Gage
v. Tewis, 68 Ill. 617. See Orr v. Good-
loe, Supra; and see next note.
9 Pasley v. Freeman, 3 Term R. 51;
§ 596.] TETING.S.
723
Fraud in Consideration Distinguished from Fraud in Ob-
taining Assent.— The law distinguishes between fraud in the
transaction Out of which a contract grows, or, as it is called,
fraud in the consideration, and fraud in reference to the assent
or execution of a contract. The former relates to the amount,
existence or quality of the subject of the contract; the latter
relates to the contract itself, and is commonly called fraud and
circumvention in the execution which leads one to enter into a
contract different from what he supposed he was doing.
The statutes of some states render void contracts procured
by circumvention — even a negotiable note held by an inno-
cent person; but when so held it is too late to claim that fraud
was used in procuring the agreement."
Megligence in assent is an important consideration where it
arises between third parties, and generally relief cannot be ob-
tained unless the complaining party has been ordinarily pru-
dent.”
Ellis v. Andrews, 56 N. Y. 83; 15 Am.
Rep. 79. Thus where, for the purpose
of obtaining a subscription, a promise
was made that a branch road would
be built, this was held but the ex-
pression of an existing intention. See
Watkins v. West Wytheville L. & I.
Co., 92 Va. 1; also New Brunswick R.
Co. v. Conybeare, 9 H. L. Cas. 711.
But the line of demarcation is very
shadowy. In Rorer Iron Co. v. Trout,
83 Va. 397, the lessees represented to
the lessors that they were about en-
tering upon extensive operations in
mining and marketing Ores; that
they had the means at hand for suc-
cessfully working a force capable of
mining and transporting such a quan-
tity of ore daily that the royalty
thereon would, at ten cents per ton,
yield the owners of the property not
less than $10 per day, collectible
every might, if desired, and promis-
ing to commence operations in sixty
days. Upon these representations
they secured a lease for twenty years,
but utterly failed to comply with
their promises. The learned judge
writing the opinion says: “The false
representations thus made by the les-
sees, and by means of which an un-
conscionable advantage was taken of
the lessors, were of matters peculiarly
within the knowledge of the lessees
and on which the lessors relied and
acted as they had a right to do, and
they were deceived and injured by
them, because they were false. These
false representations were not held
out as opinions merely, but were pos-
itive affirmations, especially adapted
to the end in view, which was to Ob-
tain the lease of the mining privileges
aforesaid.” And the court held that
relief could be granted. Doubt has
been thrown on the correctness of
this decision by a writer in 2 Va.
Law Register, who asks: “Were these
representations of existing facts, or
were they such expressions of opinion
as would come under an exception to
the rule 2 ”
1 Day v. Union India Rubber Co.,
20 How. 216; Douglass v. Matting, 29
Iowa, 498; 4. Am. Rep. 238, and valu-
able note; Chapman v. Rose, 56 N. Y.
137; 15 Am. Rep. 401; Sims v. Bice,
67 Ill. 88; Swannell v. Watson, 71 Ill.
456. -
2See 4 Am. Rep. 238, and note; In-
724, THINGs. [$ 596.
As affecting the validity of a contract between the immediate
parties: “Every contracting party has an absolute right to rely
On the express statements of an existing fact, the truth of which
is known to the opposite party and unknown to him, as the
basis of a mutual engagement; and he is under no obligation
to investigate and verify statements to the truth of which the
Other party to the contract, with full means of knowledge, has
deliberately pledged his faith.” -
But where the rights of third persons are affected, or where,
as in the case of negotiable paper, it is apparent that they may
be affected, by a contract, a greater degree of care is required,
and a party trusting to the statements or representations or
surance Co. v. Norwood, 69 Fed. Rep.
81. The tendency of some courts
to give this rule a wide application
between the parties has been the sub-
ject of severe animadversion. The
views of the English courts may
be gathered from Directors, etc. of
Cent. etc. R. Co. v. Kisch, L. R. 2 H.
T. 99, where Tord Chelmsford used
the following language: “When once
it is established that there has been
any fraudulent misrepresentation or
wilful concealment by which a per-
son has been induced to enter into a
contract, it is no answer to his claim
to be relieved from it to tell him
that he might have known the truth
by proper inquiry. He has a right
to retort upon the objector: “You at
least, who have stated what is un-
true, or have concealed the truth for
the purpose of drawing me into a
contract, cannot accuse me of want
of caution because Irelied implicitly
on your fairness and honesty.’” And
see Aaron's Reefs v. Twiss (1896),
App. Cas. 273; Cottrill v. Krum, 100
Mo. 397; 18 Am. St. Rep. 549.
1 Cooley's Elements of Torts, 198,
quoting from Mead v. Bunn, 32 N. Y.
275, 280. “If one can read his con-
tract, his failure to do so is such gross
negligence that it will estop him
from denying it, unless he has been
dissuaded from reading it by some
trick or artifice practiced by the op-
posite party. If he cannot read it, it
is as much his duty to procure some
reliable person to read and explain
it to him before he signs it as it
would be to read it before he signed
it if he were able to do so; and his
failure to obtain a reading and ex-
planation of it is such gross negli-
gence as will estop him from avoid-
ing it on the ground that he was
ignorant of its contents. This is a
just and salutary rule, because the
other contracting party universally
acts and changes his position on the
faith of the contract; and it would
be a gross fraud upon him to permit
One, who has received the benefits of
the agreement in silence, to escape
from its burdens by proof that he
did not know and did not inquire
what these burdens were when he
assumed them. Upton v. Tribilcock,
91 U. S. 45, 50; Fuller v. Insurance
Co., 36 Wis. 599, 603; Sanger v. Dun,
47 Wis. 615, 620; 3 N. W. Rep. 388;
Albrecht v. Railroad Co., 87 Wis. 105,
109; 58 N. W. Rep. 72; Wheaton v.
Fay, 62 N. Y. 275, 283; Germania
Fire Ins. Co. v. Memphis & C. R. Co.,
72 N. Y. 90, 93; Hill v. Railroad Co.,
73 N. Y. 351–353; authorities cited in
Insurance Co. v. Norwood, 32 U. S.
App. 490, 507; 16 C. C. A. 136, 145; and
69 Fed. Rep. 71, 80.” Chicago, St. P.,
M. & O. Ry. Co. v. Belliwith, 83 Fed.
Rep. 437.
§ 596.] TEIINGS.
'725
promises of another party as to any matter connected with the
consideration or execution of the contract must take the risk
of the trust he reposes or suffer for his negligence;" for it is a
maxim of the law that, of two innocent persons, the one whose
act contributed to the loss must suffer,” and in such cases any
degree of negligence gives the stranger the advantage.”
Intelligent judgment must be exercised in applying the law
in such cases. Concealment and artifice are the weapons of
fraud, and what may appear quite plain after discovery may
deceive the unwary and unsuspecting.”
Jäffect of Frawd.—The effect of fraud upon a transaction dif-
fers according to (a) the nature of the contract, (b) the tribunal,
(c) the nature of the fraud. As to simple (i.e., unsealed or oral)
contracts, fraud in either the consideration or the execution
will defeat it, and if followed by damage will give rise to an
action for deceit. Specific performance will be refused in
equity. As to sealed contracts, in courts of law only fraud in
the execution will defeat them, while in courts of equity fraud
in any material particular will be ground for cancellation or
will defeat specific performance.”
One who hears and acts upon statements made to another
cannot claim to have been defrauded if the statements prove
false. There is lacking in such a case the essential element of
privity. So it is held that an agent who acts on false represen-
tations made to him with the design of affecting the acts of his
principal is without remedy." But in the case of representa-
tions made in a public manner and to induce individuals to act
upon them, whoever receives, relies and acts upon these in the
467. “Every case involving the ques-
tion of negligence in not discovering
a fraud must be considered on all
14 Am. Rep. 238, note. A plea or
claim of fraud in the execution of a
contract or note necessarily involves
the fact of due care on the person
claiming the defense. Ross v. Doland,
29 Ohio St. 473; Butler v. Carns, 37
Wis. 61; Homes v. Hale, 71 Ill. 552.
2 Broom, Max. (8th ed.) 715; East
Ind. Co. v. Tritton, 3 B. & C. 289;
Leach v. Nichols, 55 Ill. 273: De Camp
W. Hamma, 29 Ohio St. 467; Sim v.
Pyle, 84 Ill. 271.
* Daniels, Neg. Inst., sec. 850; Benj.
Ch. Dig., Bills and Notes, art. 52.
*See Buckner v. Calcoke, 28 Miss.
its facts, and very great apparent
negligence may be excused where
prudence has been overcome by
new, peculiar or very gross frauds.”
Cooley's Elements of Torts, 199;
Brady v. Finn, 162 Mass. 260.
5 Todd v. Mitchell, 67 Ill. App. 84;
Windell v. Hurlbut, 115 Ill. 403;
George v. Tate, 102 U. S. 564.
6 Wells v. Cook, 16 Ohio St. 67; 88
Am. Dec. 436.
726 THINGS. [$ 596.
manner intended, and is deceived to his damage, has a right to
treat them as frauds upon him." *
Jºraud in fiduciary relations as a ground for rescinding a
contract is cognizable only in courts having equity powers, and
it being one of the great heads of equity jurisdiction, the subject.
will be retained for treatment under fraud as a ground for
jurisdiction in equity.
JFraud affecting third persons always relates to the transfer
or incumbrance of property, and in that phase naturally ap-
pears with sales, bailments, mortgages, deeds, wills, etc.
JOuress is the term of the law meant to express the unwilling
extortion from one of his apparent assent to a transaction.”
If this is accomplished by threatened or by actual violence to
the person, or those standing in close domestic relations, as
wife, parent, or child, or by wilful and unlawful imprisonment
of the person,” and perhaps the wilful and unlawful detaining
of personal property,’ the contract will be void. A lawful
imprisonment does not constitute duress." But an arrest con-
stitutes duress if it be without lawful authority, though for a
just cause."
Threats constitute duress where they cause reasonable ap-
prehension of loss of life or of some great bodily harm," or of
imprisonment.”
Undue Influence.—One party may occupy such a position or
1 Courts of law and equity have
frequently given relief where parties
have been defrauded by misrepre-
sentations contained in prospectuses
of corporations. Taylor v. Ashton, 11
M. & W. 401; Booth v. Wonderly, 36
N. J. 250; Paddock v. Fletcher, 42 Vt.
389. And see Fisher v. Budlong, 10
R. I. 525, where a party was induced
to insure by a false representation
contained in a prospectus issued by
an officer of an insurance company.
? Duress is a species of fraud in
which compulsion in some form takes
the place of deception in accomplish-
ing the injury. Cooley's Elements of
TOrts, 205. -
* Anson on Contracts, p. 156. A
threat to cause the arrest of one for
an offense of which he is innocent is
duress, though the one making the
threat believed in the other's guilt.
Giddings v. Iowa Bank, 104 Iowa, 676.
4 Spaids v. Barrett, 57 Ill. 289; 11
Am. Rep. 10. Some states do not rec-
Ognize duress of goods.
5 McCormick H. Mach. Co. v. Miller,
— Neb. —, 74 N. W. Rep. 1061: Wil-
Cox v. Howland, 23 Pick, 167. When
goods are unlawfully detained under
a pretended lien or a fraudulent at-
tachment, money paid to release them
may be recovered back. Spaids v.
Barrett, 57 Ill. 289; 11 Am. Rep. 10.
6.Thompson v. Lockwood, 15 Johns.
256.
7 Baker v. Morton, 12 Wall. 150.
They must be such as deprived the
party seeking relief of free will in
entering into the contract. Kennedy
v. Roberts, 105 Towa, 521.
8 Harmon v. Harmon, 61 Me. 227;
§ 597.] THINGS. 727
sustain such a relation to the other as to be able without any
actual physical force to so far control the will of the other as
to really constitute an overmastery of the mind and render him.
unable to resist his importunities."
The law recognizes that to a certain extent in the relations
of husband and wife, parent and child, attorney and client,
nurse with the sick, or one in charge of an imbecile, the former,
in each instance, has a measurable power over the mind of the
latter, and it requires that no undue or excessive importunity
shall be made the means of securing a beneficial contract or
conveyance; and the excessive exercise of this natural control
is called undue influence.” Contracts entered into because of it,
do not bind. The usury laws recognize that the debtor is meas-
urably within the power of the creditor.”
Not every pleading, urging or cajoling will amount to undue
influence. The act is so nearly akin to duress that it differs
only in the quality of the force. The importunity must amount
to coercion destroying the freedom of mind, so that the act is
performed rather from motive of fear or helplessness."
To avoid a will or deed it must be shown that the free agency
of the party executing the instrument was destroyed.”
Mere appeals to the affections or the impulse of gratitude,
however importunate, are not sufficient."
SEC. 597. Form of Assent.—As to simple parol contracts,
that is, all contracts, whether written or oral," but which are
City Nat. Bank v. Kusworm, 26 L. R.
A. 48, note.
! By undue influence is meant that
control which one obtains over an-
other, whereby the other is made to
do, in important affairs, what of his
own free will he would not do. Mar-
tin v. Teague, 2 Speers, 260; Mitchell
v. Mitchell, 43 Minn. 73; Hester v.
Hester, 122 Pa. St. 239.
2 Allore v. Jewell, 94 U. S. 511;
Anderson, Law Dict.
3 Wheaton v. Hibbard, 20 Johns.
290; Hewett v. Dement, 57 Ill. 500.
4 Orr v. Pennington, 93 Va. 268;
Anson on Contracts, 166.
5 Delaplain v. Grubb, 44W. Va. 612;
30 S. E. Rep. 201; Layman v. Conroy,
60 Md. 286.
6 Wise v. Foot, 81 Ky. 10; Schofield
v. Walker, 58 Mich. 96; Delaplain v.
Grubb, supra. “The line between due
and undue influence,” said Graves,
C. J., in Wallace v. Harris, 32 Mich.
397, “when drawn, must be with full
recognition of the liberty due every
true owner to obey the voice of jus-
tice, the dictates of friendship, of
gratitude and of benevolence, as well
as the claims of kindred, and, when
not hindered by personal incapacity
or particular regulations, to dispose
of his own property according to his
own free choice.”
7 Where parol evidence is neces-
sary to fix Some of the terms of a
contract, it is treated as oral. Rail-
way Pass. Ass’n v. Loomis, 142 Ill. 560.
* 28 TELINGS, [$ 597.
not under seal, no especial form is required excepting in cer-
tain contracts falling within the statute of frauds and certain
mercantile contracts, such as a bill of exchange or promissory
note. These latter by the law merchant must always be in
writing. Excepting in these special instances the parties may
choose their own form of expressing their intention to be bound;
or in some instances they may be bound ea contractu, where no
actual intent to be bound exists.
It is frequently laid down as a rule that the law will not
allow an agreement to rest partly in writing and partly in
parol; and it is sometimes added, so it is equally inadmissible
to add to, take from, or specifically change the terms of a writ-
ten agreement by parol.”
Neither branch of this supposed rule states a proposition of
law, and both are equally misleading.
It is not admissible to add to or take away from or vary the
written stipulations of a contract;” but if the parties choose and
will so arrange the terms of their stipulations that the oral
stipulations are independent of and do not affect the written
stipulations, and it is evident that they desire and intend part
to be in writing and part oral, no rule of law or evidence, ex-
cept in special instances, prevents the existence and proof of a
contract so entered into.”
The rules of law to be regarded in such cases are, first, that
the best evidence must always be given of any fact, and second,
the rules prescribed by statutes.
Where parties have deliberately put their engagements in
writing in terms importing certainty as to object and terms, it
is presumed that the whole engagement of the parties and the
extent and manner of their undertaking is expressed in such
writing.”
The rule arose when sealed contracts were the only ones upon
1 See Mobile & M. R. Co. v. Jurey,
111 U. S. 584.
* Lane v. Sharp, 3 Scam. 573; Mess-
more v. New York Shot Co., 40 N. Y.
422; Merriam v. Field, 24 Wis. 643.
3 Huit v. Brown, 21 Minn. 163.
4 Potter v. Hopkins, 25 Wend. 417;
:Fowler v. Redican, 52 Ill. 411; Black
3River L. Co. v. Warren, 93 Mo. 274.
“The rule itself is not quite so broad
as the terms in which it is commonly
stated. It excludes the language cov-
ering the negotiation as to a point
Covered by a stipulation, but it does
not reject another different but not
inconsistent stipulation.” Blossom v.
Griffin, 13 N. Y. 569–73. See cases in
brief in St. Clair Co. Ben. Ass’n v.
Fietsam, 97 Ill. 474.
* Stackpole v. Arnold, 11 Mass. 30.
§ 597.] THINGS. 729
which an action would lie, but it has outlived the old tradi-
tion. -
The modern foundation or reason for the rule is the presump-
tion attending the reducing of the contract to writing.” In the
case just cited it is said if it appears in the written agreement
itself that everything which has been agreed upon was not in-
serted, and that instead of inserting it a reference is made to
it, the reason of the rule does not exist.”
It is not necessary in order to admit evidence that the writ-
ten parts should expressly refer to parol conditions or terms.
t is sufficient if it clearly appears, either from the writing or
circumstances, that it was not the intention of the parties to
include within the written part their whole agreement.*
If the agreement is within the statute of frauds, parol evi-
dence cannot be admitted, even to connect the two writings.”
Two writings executed at the same time in reference to the
same subject-matter may be regarded as constituting one con-
tract," and, unless the contract is within the statute of frauds,
parol evidence may be given to connect them."
A written instrument executed in part performance of a con-
tract does not supersede a contract or prevent its proof as a parol
contract.”
It is quite plain that the rule sometimes stated is put too
broadly, and that in the absence of the statute of frauds simple
contracts may arise wholly by acts or wholly by written stipu-
lations, or wholly by words; or they may rest partly in writing
and partly in oral stipulations, or partly written and partly by
acts, or partly oral and partly by acts, the true rule being the
one of evidence that parol evidence cannot be heard to contra-
dict a written stipulation.” -
1 Stackpole v. Arnold, 11 Mass. 30.
2 Com. v. McCalmont, 3 Pa. 122.
3 Anson on Contracts, 50, 51; Couch
v. Meeker, 2 Conn. 305; Fowler v. Redi-
can, 52 Ill. 411.
4 Stoops v. Smith, 100 Mass. 63; 1
Am. Rep. 85; 4 Phillips’ Ev., 598.
5 Fowler v. Redican, 52 Ill. 405. See
Emerson v. Slater, 22 How. 28.
6 Anson on Contracts, 150.
7 Heywood v. Perrin, 10 Pick. 228;
Fowler v. Redican, supra; Bailey v.
Railroad Co., 17 Wall. 105.
8 Barker v. Bradley, 42 N. Y. 316; 1
Am. Rep. 521; Bernard v. Sampson,
12 N. Y. 561; Ludeke v. Sutherland, 87
Ill. 483; Juilliard v. Chaffee, 92 N. Y.
531.
9A contract may rest partly in
writing and partly in parol. Batter-
man v. Pierce, 3 Hill, 171; Potter v.
Hopkins, 25 Wend. 417. See 10 L. R.
A. 689. In a recent New York case
it was said the defendant is prima
facie bound by the writing; but
whether the plaintiffs promised some-
730 THINGS. [$ 598.
Jęecitals of Consideration.—The true consideration may al-
ways be shown whether it is set out in the writing or not, ex-
cepting that, as to contracts under seal, it is not admissible
by this indirect means to show that there was no contract.”
A parol collateral agreement to do something not mentioned
in the contract, but which constitutes a material part of the
consideration, may be shown by parol.”
As to Oral contracts, it is always allowable to show what the
true consideration of the contract was, whether it was set out
in the writing or not," or to show that there was no considera-
tion, or in fact anything that would show that there was really
never in the eye of the law a contract.”
SEC. 598. Scope of the Assent.—The assent of the parties in
the case of written contracts is not alone to be measured by
the four corners of the instrument. As we have seen, it may
be supplemented by other stipulations not contained in the
written stipulations. But aside from this, the covenants may
be amplified by reference to other sources of information, and
all writings to which reference is made in a written contract
are a part thereof, and binding upon those signing with notice,
even though the terms of the document may not be fully un-
derstood by the parties executing it." It is the duty of the par-
ties to acquaint themselves with everything referred to, or of
which they should take notice." - *
thing more than can be inferred from
that writing, and which may consti-
tute a separate undertaking leading
to the defendant’s order, and what
they did at the interview when the
bargain was arranged, may be shown
by a resort to the conversation. Rout-
ledge v. Worthington Co., 119 N. Y.
592.
1 Wolf v. Fletemeyer, 83 Ill. 418;
Mann v. Smyzer, 76 Ill, 365; Baker
v. Bradley, 42 N. Y. 316; 1 Am. Rep.
521.
2 Juilliard v. Chaffee, 92 N. Y. 529.
It is not admissible, except by stat-
ute, to disprove consideration in a
deed so as to destroy it as a convey-
ance. M'Crea, v. Purmort, 16 Wend.
460; Wilbur v. Warren, 104 N.Y. 192.
3 Bross v. C. & V. R. R. Co., 9 Brad.
363; Oliver v. Oliver, 4 Rawle, 141; 26
Am. Tec. 123; Witbeck v. Waine,
16 N. Y. 538; M'Crea, v. Purmort, 16
Wend. 460; 30 Am. Dec. 103; Ran-
didge v. Lyman, 124 Mass. 362; Carr
v. Dooley, 119 Mass. 294.
4 Wolf v. Fletemeyer, 83 Ill. 418;
Mann v. Smyzer, 76 Ill. 365.
5 Culver v. Hide & Leather Bank,
78 Ill. 625; Peabody v. Dewey, 153
Ill. 657; Juilliard v. Chaffee, supra.
6 Sec. 599. ! .
7 Kennedy v. Ross, 25 Pa. St. 256;
Clinton v. Hope Ins. Co., 45 N. Y. 454;
Home Ins. Co. v. Favorite, 46 Ill. 263;
G. & S. W. Ry. Co. v. Barrett, 95 Ill.
480; Black v. W., St. L. & P. Ry. Co.,
111 Ill. 351. In Hart v. Hart, L. R.
18 Ch. Div. 670, a reference was made
to “usual covenants,” and proof was
resorted to to show what these were.
In Harris v. G. W. Ry. Co., 1 Q. B.
§ 598.] TEITNGS. 731
Covenants implied from those expressed, upon the identical
principle invoked in construing the constitution, are as much
a part of the contract as those which are expressed." -
The law of the place where the contract is made is a part of
it, and all other states Ought to carry it out precisely as it would
be according to the lea, loc' contractus,” even though invalid by
the law of the forum.”
Usages of trade and customs" of business among banking,
mercantile, insurance companies, common carriers, or others
known to have customs are a part of the contract to such an
extent that they may modify or amplify express words of a con-
tract, and it is the duty of persons to acquaint themselves with
the usual mode in which such businesses are conducted.”
These latter are not the general usages which amount to pub-
lic law, but they are special customs relating to a particular
business or a business in a particular place." But it is not the
office or province of a usage or custom to override the plain
terms of a contract," and it has no effect if it be inconsistent
there with.”
Div. 515, a railway ticket had printed
on face: “Subject to condition. On
back.” Held, this was notice of the
condition; but where no such notice
appeared, it must appear that at-
tention was directed to it. Hender-
son v. Stevenson, L. R. 2 H. L. Sc.
App. 470. “See back,” on face of
ticket, is not conclusive on question
of notice. Parker v. S. E. Ry. Co., 2
C. P. D. 416. For the American law
on the subject, see Railroad Co. v.
Manufacturing Co., 16 Wall. 318; Pot-
ter v. The Majestic, 60 Fed. Rep. 624.
But a contract to transport, made
orally, is not controlled by conditions
and stipulations for exemption
printed on the back of a receipt for
the goods. Merchants’ Dis. & T. Co.
v. Furthmann, 149 Ill. 66.
1 Dunlap v. C., M. & St. P. Ry. Co.,
151 Ill. 409.
* Ogden v. Saunders, 12 Wheat., at
p. 298; Morley v. Lake Shore Ry., 146
U. S. 162; Merchants’ Dis. & T. Co.
v. Furthmann, 149 Ill. 66.
The custom must not be absurd or unreasonable.”
8 Greenwood v. Curtis, 6 Mass. 358;
4 Am. Dec. 145.
*These general usages are like the
law of the state. Hostetter v. Park,
137 U. S. 30. .
5 Mills v. United States Bank, 11
Wheat. 431; Fowler v. Brantley, 14
Pet. 318; Bank of W. v. Triplett, 1
Pet. 25; Renner v. Bank of Col., 9
Wheat. 582. Cf. Bliven v. N. E. Screw
Co., 23 How. 420; Rindskoff v. Bar-
rett, 14 Iowa, 101; Doan v. Dunham,
79 Ill. 131.
6 There is a distinction between
usage and custom. The former refers
to particular matters and places,
while custom is more general. See
Wells v. Barley, 49 N. Y. 464.
7 Moran v. Prather, 23 Wall. 492.
8 Robinson v. United States, 13
Wall, 363.
9 United States v. Buchanan, 8
How. 83; Walker v. W. T. Co., 3 Wall.
150; 18 Lawyers' Ed. U. S. Rep. 172,
note.
732 TEITNG.S. [$ 599.
A course of dealing is sometimes confused with usage and
custom, but differs from both in that it consists of a habit by
which two persons have conducted numerous transactions; and
the transactions must have been so numerous as to warrant the
court and jury in saying that in the absence of any stipulation
this course of dealing was tacitly assumed as a part of their
contract." A uniform course of doing business by a company
will not bind One not connected with it.”
It seems that the invariable usage of a business house, con-
sistent with custom, controls even in the absence of personal
knowledge of it, and that the law requires persons dealing with
men engaged in commercial businesses like banking, where
usages are necessary and common, to inquire into their estab-
lished usages.” But this rule cannot extend to a mere course
of dealing. They must be known in order to bind," and to be
availed of must be pleaded.” -
SEC. 599. Agreement, Not Intention, Constitutes the Con-
tract.— It follows from what has been said that the only thing
that the courts can regard is the intention or agreement as ex-
pressed by words or acts or conduct of the parties, and that
the secret intention of one of the parties cannot defeat the
actual contract or control its construction; hence it is said the
court will not inquire whether the parties did not intend to ef-
fect a different object from that which the legal effect of their
conduct or agreement indicates." The actual intention of the
parties may be one thing and the agreement another."
1 Bishop on Contracts, p. 444.
2 Riley v. Penn Mut. L. Ins. Co. (Pa.),
42 Atl. Rep. 191.
3 Mills v. United States Bank, 11
Wheat. 431; Fowler v. Brantley, 14
Pet. 318.
4 Gamble v. Stauber Mfg. Co., 50
Neb. 463.
5 First Nat. Bank V. Farmers’ Bank
(Neb.), 76 N. W. Rep. 430.
6 “In other words,” as said by Prof.
Holland, “the legal meaning of such
acts on the part of one man as induce
another to enter into a contract with
him, is not what the former really
intended, nor what the latter really
Supposed the former to intend, but
what a ‘reasonable man,’ i.e., a judge
Or jury, would put upon such acts.
This luminous principle at once
Sweeps away the ingenious specula-
tions of several generations of moral-
ists, while it renders needless long
lists of subtle distinctions which have
been drawn from decided cases.”
Holland's Jur., p. 225; Pickard v.
Sears, 6 A. & E. 475; Smith v. Hughes,
L. R. 6 Q. B. 607; Cornish v. Abing-
ton, 4 H. & N. 549.
7 Broadwell v. Broadwell, 1 Gilm.
599. The first rule is that men must
be taken to mean what they say.
§ 599.] THINGS. - 733
The Agreement Must be Actual.— If one who is unable to
read signs a contract which he is led by the affirmation or
conduct of the other party to believe is the contract he desires
to sign, whereas it expresses a different agreement, there is no
such meeting of minds as constitutes a contract. -
The leading case upon this subject is Thorogood's Case,”
where an illiterate man was told that the document was a re-
lease of an arrears of rent due, but in fact it released all claims.
Iſe did not require the contract to be read, but the other party
misrepresented to him the contents of the contract, he reply-
ing: “If it is not otherwise, I am content.” The deed was
held void.
In such a case the deed is absolutely void, and, if there is no
negligence whatever, the same rule applies to a promissory
note.” Such fraud, deceit and circumvention is akin to forgery,
and may even constitute that offense.”
Diligence in Such Cases.—It is not under all circumstances
that even illiterate persons may rely upon the other contract-
ing party. Of course as between the parties* to the agreement
such deception avoids it, but where the rights of third persons.
are involved the element of diligence must also exist.”
If one who is capable of understanding executes a contract,
he may not avoid it on the ground that he did not read it over
and was not informed as to its contents."
The law requires of all parties that they shall exercise rea-
sonable prudence in the business affairs of life, and that inno-
cent persons shall not suffer because of their apparent acts,
which are unreal only because of negligence."
It is the duty of one about to execute a contract of any kind
to inform himself as to its contents, and mere negligence will
not excuse him. As between himself and the other party, he
Pollock, Cont. *456; Upton v. Tribil- 3 McGinn v. Tobey, 62 Mich. 259; 4.
cock, 91 U. S. 45; Sanger v. Dun, 47 Am. St. Rep. 848; Griffiths v. Kel-
Wis. 615; State Bank v. Butler, 149 logg, 39 Wis. 294; 20 Am. Rep. 48.
Ill. 575. 4 Linington v. Strong, 107 Ill. 295;
12 Co. Rep. 9b; Anson on Contracts 111 Ill. 152. .
(Knowlton’s 2d ed.), 161. 5 Hunter v. Walters, L. R. 7 Ch. 84;
* Foster v. McKennan, L. R. 4 C. P. Anson on Contracts, *124.
705; Champion v. Ulmer, 70 Ill, 322; * Leach v. Nichols, 55 Ill. 273.
Douglass v. Matting, 29 Iowa, 498. 7 Anson on Contracts, 16–18.
734 THINGS. [$ 600.
Ought to be able to prove: First, his own mistake; second, some
degree of fraud."
As affecting the rights of an innocent third person, he ought
to be able to show diligence on his part and fraud affecting
the character, import and execution of the instrument.”
SEC. 600. Importance of Form.—The presence of certain
formalities accompanying the manner in which the assent was
required to be expressed, or, as it is otherwise termed, the ex-
ecution of contracts or conveyances, was never in any system
more strenuously insisted upon as a condition upon which the
courts moved to enforce them than in the law of England.”
The Roman law has been justly termed a highly artificial
system, but it was no more so than is the common law.
According to the Digest, a contract is a species of agreement
(or convention), the accord of two wills, conventio pactum;
and in an agreement there is first of all the pollicitatio, the
offer made by one party, followed by acceptance by the other.
When this accord of wills was such in its form and elements
that the law added a third element, the vineulum juris, or ob-
ligation, it was called a contract. Such is precisely the case
in Our law.”
It is to be observed that not all agreements reach the dignity
of a contract which result in a legal obligation.
To the agreement of the minds there must also be added the
obligation,” which arises in one of two ways: By the presence
of certain formalities, or by a consideration." Let it be remem-
1 Whart. On Ev., Secs, 1028, 1243.
2 Pindar v. Resolute F. Ins. Co., 47
N. Y. 114; Black v. W., St. L. & P.
Ry., 111 Ill. 351; Upton v. Tribilcock,
91 U. S. 45; Sanger v. Dun, 47 Wis.
615. See fraud in execution of ne-
gotiable paper under the subject
“Negotiable Instruments.”
* See 1 Spence, Eq. Jur., pp. *119–
243. This becomes apparent when
we consider that originally only
deeds under seal were enforceable —
that a conveyance of an interest in
land not accompanied with or sus-
ceptible of delivery (seizin) could only
be by deed. Then came the law that
negotiable promises must be in writ-
ing, and lastly the statute of frauds,
applying to most of the affairs of
life. See the reason given for these
solemnities in Sharington v. Strot-
ton, Plowd. 298–302 et seq. (A. D. 1565).
4 Amte, Sec. 586. See also 1 Pollock,
Cont., pp. 6–8.
5 Sanders' Justinian, 399.
6 Mitchell, Judge, replying to an
argument that a note was an execu-
tory contract, says: “This is a mis-
nomer. It is not a contract at all,
but a mere naked promise, a nudum.
pactum, for want of a consideration,
which is an essential part of the
definition of a contract.” Kerns' Es-
tate, 171 Pa. St. 55.
§ 600.]
THINGS. 735
bered that obligations are by the common law divided into
obligations ea contractu and ea delicto. .
Sanders, in his notes to Justinian, says “that in Order that
this third element [the obligation] should be added, it was, ac-
cording to the strict theory of Roman law, necessary that the
accord of the wills should have been expressed in a particular
manner.”” g
He adds: “In the Roman law, the neaum, the form of con-
veyance by the scales and the copper, was the only form of
contract recognized, and the use of this form continued to be
necessary to pass res mancip?.” Afterwards other and more
varied forms were substituted.” ” -
In the early days the king's courts in England entertained
jurisdiction only where the contract was made by deed under
seal, or if the transfer of the thing was completed by delivery.
Of mere agreements, privata, conventiones, not so perfected,
and claims resting upon verbal promises, the king's court took
no cognizance, and the common law afforded no remedy." In-
deed, when the common-law courts first took cognizance of the
breach of verbal executory contracts, it was upon the theory of
a delict or tort.”
From this may be seen the origin of the technical name of
the action of assumpsit, viz., trespass on the case on the prom-
ise." These theories dominated the English law so completely
as to direct the classification of actions into actions ea delioto
and actions ea; contractu.
1 Sanders' Justinian, 399. There pending on form. Sanders' Justinian,
were thus introduced the following
forms to which names were given:
1. Verbis, by the stipulation. 2. Lit-
eris, by entry in a ledger. 3. Then,
without any special form being gone
through, contracts were recognized
when made re, i.e., by simple deliv-
ery of a thing, in one of four ways:
mutwum, commodatum, depositwm,
pigmus. And lastly, 4. In four cases
contracts were recognized as arising
immediately out of the consent of the
parties, sale, letting or hire, partner-
ship, mandatum. There were thus
ten recognized heads of contracts de-
399.
* See Introduction, Sec. 59.
3 Sanders' Justinian, 399. -
* Spence's Eq. Jur. 243. In such
cases, where the non-performance im-
plied a breach of faith, in Glanville's
time the ecclesiastical courts might,
lay hold of the conscience of the
party and force him to perform, and
the king through his chancery court
might interfere in special cases.
51 Spence's Eq. Jur. *119, 242. See
“The History of Assumpsit,” J. B.
Ames, 2 Harv. Law Rev. 14–16.
6The plea was then not guilty; now
47
736 THINGS. [$ 600.
So likewise the formalities accompanying the execution of
agreements after the time when the common-law courts would
enforce an unsealed contract because of the presence of the con-
sideration, controlled the classification of contracts into special-
ties and simple or parol contracts."
Sealed or Unsealed.— All contracts by the law of England
were, after simple contracts became enforceable, distinguished
into agreements by specialty and agreements by parol. A mere
writing of itself carried no obligation different from an oral
engagement. The specialty was a writing under seal; all others
were deemed parol or simple contracts.”
Jºeecuted and Evecutory Contracts.-The distinction in sub-
stance and effect between an executory contract and one exe-
cuted is very marked and clear. The former is an agreement
to do or forbear, and the promisor has as yet done nothing. An
executed contract has generally been executory, but by per-
formance has fulfilled its office, and the promisor has conferred
the benefit by way of something given, granted or forborne.
Only in the case of gifts and grants do executed contracts
arise independently of a prior executory agreement, and not
always in such cases.”
Sealing—Jºffect of.--While the distinction between sealed
and unsealed instruments may be technical, it is part of the bed-
rock on which the whole law of contracts is built.*
it is non assumpsit. See 1 Spence's
Eq. Jur. 242.
1 Before that time the law knew
only two forms of agreement: the
contract, deed or pactum, and nudum,
pactum.
2 Rann v. Hughes, 7 T. R. 346. This
is the case which overruled Pillans v.
Van Mierop, 3 Burr. 1663, which held
that a simple written agreement im-
plied a consideration. Reported as a
note to Mitchinson v. Hewson.
3See Fletcher v. Peck, 6 Cranch, 87.
In this case it was held that an ex-
ecuted contract, i. e., a grant, was
attended by an obligation which sur-
vived performance by delivery.
4Per Mitchell, J., In re Kerns’ Es-
The ex-
tate, 171 Pa. St. 55. Many strictures
have been indulged in against the re-
quirement of a seal and the apparent
unreasonableness of it. To us at the
present time it seems Strange, but the
requirement is precisely of the same
character as the provisions of the
statute of frauds, and was simply
saying, in effect: No action can be
brought on any contract not evi-
denced by the seal of the party
charged. As commerce increased,
modern statesmen and lawyers found
it useful to provide that no action
could be brought (in a multitude of
special instances) unless upon a writ-
ing signed by the party charged.
§ 600.] THINGS. 737
tent and character of the remedy was controlled mainly by the
presence or absence of a seal. w
In fact, the elements which must be present in the agree-
ment in order to make it enforceable were different, according
as it was sealed or unsealed, i. e., the specialty rested on the
solemnities of its execution, as incontrovertibly evidenced by
the seal." The simple contract rested on consideration, as it
might be established by the evidence; while no matter how
solemn and perfect the promise, whether in writing or orally
made, unless based on a consideration it was a mere naked
pact, and not enforceable.”
At common law, in the case of sealed instruments, the con-
sideration was conclusively presumed.”
Except in the case of bills and notes it is necessary for the
11 Spence's Eq. Jur. 161. Prior to
the statute of frauds a deed was not
necessary to convey lands, but only
things lying in grant, incorporeal
things of which the grantee could
not be given manual possession.
Tands passed commonly by the cere-
mony of investiture. 3 Washb. 234.
See infra, Real Property. At this
day it is required in most of the
states that a deed shall be sealed.
The origin of this custom may be
ten instrument was called a writing
unless it had a seal. This is well and
fully explained in Williams on Real
Property, *137; 2 Blk. Com. 305, 306.
In Hacker's Appeal, 121 Pa. St. 192,
thus explained: In the early days of
the common law, learning was con-
fined almost exclusively within the
limits of the church. Very few of
the landed gentry could write. But
every man of position had a distinct-
ive seal—the badge of his family.
Therefore when a written document
was required, not being able to sign
his name, he affixed his seal, gener-
ally in wax. A writing was then a
solemn affair, and was taken as con-
clusive of the consideration for the
deed. (See infra, Consideration.) It
can be readily seen how natural it
was that the custom of affixing the
seal should remain after the reason
for its use had passed away. For a
long time after the ability to write
had become quite common no writ-
the court said that what in the early
times “from necessity attested the
execution and the genuineness of it,
is now but a mere arbitrary form,
through which, however, special ob-
ligations still attach, in support of
the well-recognized distinction be-
tween writings which are valid and
those which are not.” As noted
above the seal was formerly an im-
pression upon wax. But now no par-
ticular form is necessary, and it may
be an impression upon wax or upon
the paper itself. This impression
may be made by a stamp, or by affix-
ing a piece of paper. It may be a
mere scroll. The letters L. S., or the
word “seal” inclosed in brackets, are
frequently used. Bradford v. Ran-
dall, 5 Pick. 495; Hacker's Appeal,
121 Pa. St. 192; Van Bokkelen v.
Taylor, 62 N. Y. 105. .
2 United States v. Linn, 15 Pet. 290.
See “Consideration,” infra, sec. 601.
8 Anstell v. Humphries, 99 Ga. 408;
Carey v. Dyer, 97 Wis. 554; Re
ICerns' Estate, 171 Pa. St. 55; Sumner
738 THINGS. [$600.
person relying upon a simple contract to allege and prove the
consideration. . g
In the case of sealed instruments no such proof need in the
first place be offered, but in many of the states, by force of the
statutes, the consideration of all classes of contracts is open to
inquiry."
Other important consequences follow affixing a seal, whether
the contract be such an one as is required to be under seal or
not; e. g., it is not allowable to show that one signing a sealed
instrument is the agent of an undisclosed principal and so to
bind the principal, which may generally be done if the contract
is not sealed; * nor can such a contract be modified by a subse-
quent parol contract; * nor can it be shown in any other way
that parties not named in it are entitled to its benefits.” There
is a tendency to remove the distinction between sealed and un-
sealed instruments, and not being based on any rational ground
it is hard to understand how the distinction survived so long.”
The Statute of Frauds.- The English law as to the formal-
ities essential to enforceable contracts is, except in a few par-
ticulars, controlled by what is known as the Statute of Frauds
and Perjuries, an enactment of the 29th Car. II., ch. 3, and
amendments thereto or modifications thereof." By adoption
v. Williams, 8 Mass, 162; 5 Am. Dec.
83; Gray v. Barton, 55 N. Y. 68; 14
Am. Rep. 118; 6 Am. Dec. 656.
1 In other states statutes have been
passed by which the distinction be-
tween sealed and unsealed instru-
ments is abolished, and are designed
to make sealed as well as unsealed in-
struments open to defense for want
of consideration. Tracy v. Alvord,
118 Cal. 654. See Leonard v. Bates,
1 Blackf. 172; Withers v. Green, 9
IIow. 213; Barton v. Gray, 57 Mich.
,622.
2 Briggs v. Partridge, 64 N. Y. 357.
3B., O. & C. Ry. Co. v. T. C. Ry. Co.,
137 Ill. 30. But an executed parol
agreement may have the same effect
by estoppel. Watson v. White, 52
Ill. 364; Worrell v. Forsyth, 141 Ill. 30.
4 Gibson v. Warden, 14 Wall. 244.
See the subject of “Privity.”
5 McMillan v. Ames, 33 Minn. 257.
“The agitation for the passage of
this statute became active in 1673,
but it was not passed till 1677. The
matters which its provisions regulate
are those of every-day occurrence,
and the great importance of the en-
actment was fully recognized at the
time. The language of Lord Not-
tingham that “every line was worth
a subsidy’’ is often quoted. From
the fact that lands were conveyed
and so many of the transactions of
daily life carried out without the
aid of writings, when any question
arose as to these matters it was nec-
essary to resort to the testimony of
witnesses. The object of passing the
statute “was to prevent the facility
to frauds and the temptation to per-
jury held out by the enforcement of
obligations depending for their evi-
$600.] THINGS. 739)
the substance of the provisions of this statute is the law of most,
of the states in the Union. -
The statute of frauds relates to all manner of leases, deeds;
conveyances, assignments and wills affecting real estate, all of
which, excepting devises, fall within the broad meaning of the
word “contract,” but two only of the sections, namely, the
fourth and seventeenth, specifically affect personal executory
agreements, raising a mere obligation in personam.
The fourth section provides:
1. That no action shall be brought" whereby to charge any
executor or administrator to answer damages out of his own es-
tate for any debt of the deceased;” -
2. Or to charge any one upon any special promise to answer
for the debt, default, or miscarriage of another person;”
dence upon the unassisted memory
of witnesses.” Smith, Contracts, 79.
The master spirit in the framing
of this statute is said to have been
Sir Matthew Hale. , ASSociated with
him in its preparation were Lord
Reeper Guilford and Sir Lionel Jenk-
ins. It was brought into the House
of Lords by Lord Nottingham.
1 A contract within the statute
cannot be used as defense any more
than as the basis of an action.
Wheeler v. Frankenthal, 78 Ill. 124;
Browne on Fraud, § 131; Hand v. Os-
good, 10 Mich. 55.
2 The design of this clause is to pre-
vent executors or administrators
from being held fraudulently for the
debts of the estate. The undertak-
ing is in the nature of a guaranty.
A promise implied by law is not
within the statute. Bellows v. Sowles,
57 Vt. 164.
3 This closely resembles the first
clause, and, like it, is held to be in
the nature of a guaranty. Harring-
ton v. Rich, 6 Vt. 666.
If the promise to indemnify is a
promise to pay the debt of another
out of the property of the promisor,
it is within the statute. Nugent v.
Wolfe, 111 Pa. St. 88, 471; Clement’s
Appeal, 52 Conn. 464. But if it is but
a promise to pay over funds belong-
ing to that other, it is not. Rymer v.
Sim, 3 H. & McH. 451; 1 Am. Dec.
379. It is, however, to be distin-
guished from a promise to save the
promisee harmless, or a mere indem-
nity. There must be three parties in
contemplation. Lerch v. Gallup, 67
Cal. 595; cases cited in note to Tighe
v. Morrison, 25 L. R. A. 617. A prom-
ise by one to another to pay the
latter's debt to a third person is not
within the statute. Eastwood v.
Renyon, 11 Ad. & El. 438; Townsend
v. Long, 77 Pa. St. 143; 18 Am. Rep.
438, and cases cited in 25 L. R. A. 264,
note.
If, by an original agreement, the
promisor becomes primarily liable,
this is not within the statute; as
where goods are delivered to another
on the credit of the promisor. The
statute contemplates an agreement
collateral to a primary liability. See
Larsen v. Jenson, 53 Mich. 427; Bug-
bee v. Kendricken, 130 Mass. 437;
Eden v. Chappee, 160 Mass, 225; Hart-
ley v. Varner, 88 Ill. 561.
If the promise operates to extin-
guish the primary liability it is a
novation or payment, and is not
740
[$ 600.
THINGS.
3. Or to charge any one upon any agreement made in con-
sideration of marriage;"
4. Or any contract for the sale of lands, tenements, or here-
ditaments, or any interest in” or concerning them;”
5. Or any agreement that is not to be performed within one
year from the making thereof.”
within the statute. Carlisle v. Camp-
bell, 76 Ala. 247; Teeters v. Lamborn,
43 Ohio St. 144; Hill v. Frost, 59 Tex.
25.
The term “miscarriage” embraces
liabilities arising eac delicto as well as
Out of contract. Kirkham v. Mather,
2 B. & Ald. 613. And so in some states
the word “misdoings” has been sub-
stituted. See Bellows v. Sowles, 57
Vt. 164.
If the main purpose of the prom-
isor is not to answer for another, but
to subserve some pecuniary interest
of his own, the promise is not within
the statute. Emerson v. Slater, 22
|HOw. 28–43.
1 This has no reference to the prom-
ise to marry, the consideration for
which is the promise of the other
party, unless such promise is part of,
and dependent upon, an ante-nuptial
agreement. Chase v. Fitz, 132 Mass.
359.
23 Washb. Real Prop. 553.
8 This must be a substantial inter-
est in land. Fructus industriales
(crops planted and cultivated) do not
constitute such interest. Fructus
naturales (timber, etc.) do, if it is con-
templated that property in them shall
pass before they are severed from the
soil. Anson on Cont. 61. See infra,
Real Property. A contract is within
the section if it covers both realty
and personalty. Meyers v. Schemp,
67 Ill. 469.
4.A contract does not fall within
this clause of the statute unless it
Cannot by any possibility be per-
formed within the year without vio-
lating the contract. See Durgin v.
Smith (Mich.), 73 N. W. Rep. 361;
Curtis v. Sage, 35 Ill. 22.
Several states hold, following Don-
ellan v. Reed, 3 B. & Ald. 199, that if
one party may perform within a year
the contract is without the statute.
Grace v. Lynch, 80 Wis. 166; Wolke
v. Fleming, 103 Ind. 110; Mackey v.
Thisler (Kan.), 53 Pac. Rep. 767; Smal-
ley v. Green, 52 Iowa, 241.
Contrary: Broadwell v. Getman, 2
Den. 87; Pierce v. Paine's Estate, 28
Vt. 24; Jackson Iron Co. v. Negau-
nee, etc. Co., 65 Fed. Rep. 298; Whip-
ple v. Parker, 29 Mich. 375; Frary v.
Sterling, 99 Mass. 461.
A promise to marry which can-
not be performed within a year is
within the statute. MacElree v.
Wolfensberger (Kan.), 52 Pac. Rep.
69. But not so a promise (though
contingent) which may be per-
formed within a year, even though
the contingency (e. g., regaining
health) be improbable. McConahey
v. Griffey, 82 Iowa, 564. See also
Walker v. Johnson, 96 U. S. 524; Sed-
don v. Rosenbaum, 85 Va. 928; 3. L.
R. A. 339, and note. This section
embraces leases for land. Alt v.
Lohnas, 19 Ill. 576. And such a lease,
to begin at a future date and con-
tinue one year, is within the statute.
Wheeler v. Frankenthal, 78 Ill. 124.
The contrary is true under the New
York statute (Young v. Dake, 5 N. Y.
463); also in Michigan (Whiting v.
Ohlert, 52 Mich. 462). And this sug-
gests the remark that the particulars
of the statute differ quite materially
in the several states. See Brown v.
Rayser, 60 Wis, 1.
§ 600.] THINGs. 74.1
Unless the agreement in all such cases upon which the action
was based, or some memorandum or note thereof, be in writ-
ing, signed by the party to be charged, or some other person
thereunto by him lawfully authorized." * - :
The memorandum in writing provided for in the statute
must mention or refer to all essential elements of a contract,
and must be signed by the party to be charged or his agent.
The signature may be by a mark or initials.” - -
No formality is required." Nor is it essential that the writ-
ing be contemporaneous with the transaction, or even that it
precede the suit. A definite admission in an answer in chan-
cery would constitute a sufficient memorandum in writing to
take the case out of the operation of the statute.
The elements of the written memorandum may be collected
from several documents, either physically attached, or one re-
ferring to the other, or so connected as plainly to refer to the
transaction, and be sufficiently clear and certain without ref-
erence to parol testimony.”
It need not be delivered." An entry on the books of the
party charged is sufficient."
The memorandum must make manifest a complete contract
against the party charged, and render reasonably certain the
parties, subject-matter, the terms and conditions of sale, and
in some states the consideration.”
1 See as to the requirements of the
clause, 3 Par. Cont. 3.
2See Morton v. Murray, 176 Ill, 54.
82 Kent, 669; Salmon Falls Mfg.
Co. v. Goddard, 14 How. 447.
4 Clason v. Bailey, 14 Johns. 484.
See note in 2 L. R. A. 212.
* Louisville Asphalt, etc. Co. v.
T.Orick, 29 S. C. 533; 2 L. R. A. 212,
and note; Ross v. Allen, 45 Kan. 231;
10 L. R. A. 838; Frank v. Miller, 38
Md. 461; Peck v. Vandemark, 99 N.
Y. 29.
6 If, however, it be in the form of
a deed, it must be delivered. Calla-
nan v. Chapin, 158 Mass. 113; Camp-
bell v. Thomas, 42 Wis. 437; 24 Am.
Rep. 427, a case where a deed placed
in escrow did not recite the terms
of the contract. See also Kopp v.
Reiter, 146 Ill. 437; 22 L. R. A. 272,
and note. . -
7 Tufts v. Plymouth, etc. Co., 14
Allen, 407. But an unsigned entry
is insufficient. Barry v. Law, 89 Fed.
Rep. 582.
8 Anson on Contracts, 72; McCon-
nell v. Brillhart, 17 Ill, 353. Names
of parties, Mentz v. New witter, 122
N. Y. 491. The rule of Wain v. Warl-
ters, 5 East, 10, that the consideration
must appear, is repudiated in other
states. Packard v. Richardson, 17
Mass. 122; Britton v. Ainger, 40 N. H.
422; Patchin v. Swift, 21 Vt. 297.
*742 TEIIINGS. [$ 600.
Void or Voidable.—It is important to distinguish whether the
particular contract involved in a litigation is one rendered ab-
solutely void by the terms of the statute or by the construction
of the courts, or whether it is regarded as being merely void-
able." © s
The general rule applies here that a contract in violation of
a statute is not void unless expressly so declared, and the courts.
do not regard these contracts as malum in Se, Or wrong in them-
selves, and on that ground illegal, and if they are held void they
do not put the parties in a position where no recovery may be
had for a benefit received under the contract.”
Part Performance.— Part performance of a contract falling
within the inhibition of the statute will not in the courts of
law be ground for the maintenance of any action or relief based
on it.” But in equity the part performance is held to be a
ground for a specific performance of the contract.” Equity
acts independently of the agreement, on the ground that, the
aim of the statute being to prevent fraud, it will not permit a
substantial fraud to be imposed under the cover of its pro-
visions.”
The acts performed to give this doctrine force must have
been done by the plaintiff in pursuance of the agreement and
in reliance upon it, and must be of such a nature that the par-
ties cannot be put in statu quo."
2 Hill, 485; Comstock v. Ward, 22 Ill.
248; Warner v. Hale, 65 Ill. 395;.
1 Browne on Fraud, $ 115.
2 Abbott v. Draper, 4 Den. 51–57;
12 Johns. 451. See Illegality. In some
states the statutes declare that these
contracts shall be void unless the
prescribed formalities are observed.
Lea, loci...—A contract, valid by the
laws of the place where it is made,
although not in writing, will not be
enforced in the courts of a country
where the statute of frauds prevails,
unless it is put in writing. Leroux
v. Brown, 12 C. B. 801; Pritchard v.
Norton, 106 U. S. 134. Generally the
converse of this is not true, but it
has been held otherwise. Danner v.
Cheeseborough, 36 Conn. 39.
*In the absence of statute. Browne
on Fraud, $451; Allaire v. Whitney,
Thompson v. Gould, 20 Pick. 134.
4 Dunn v. Berkshire, 175 Ill. 243.
5 Malins v. Munroe, 4 N. Y. 403.
When a father promises his son
that if the latter will clear up and
improve a certain tract of land he:
will deed the same to him, and the
son enters on the land and clears it
up, the case is taken out of the stat-
ute. Lobdell v. Lobdell, 36 N. Y. 327.
And see Neale v. Neale, 9 Wall. 1.
6 Williams v. Morris, 95 U. S. 444;.
Crabill v. Marsh, 38 Ohio St. 331;
Fraser v. Gates, 118 Ill. 99; Irwin v.
Dyke, 114 Ill. 302; Peckham v. Win-
ter, 49 Mich. 179.
§ 601.] THINGS. 743.
When the promise is to deed land, part performance by pay-
ment of money or by services is not sufficient."
SEC. 601. Consideration.—A consideration is an essential ele-
ment of an enforceable simple contract.”
In an early period of English law, when the necessity for the
presence of what we now call the consideration was recognized,
it was designated by an expression which, according to the
idiom, conveyed the precise idea. It was then called quid pro
quo — a something for a something. Later it was termed a
cause, and finally obtained the technical designation considera-
‘tion.”
It is said in Sherington v. Strotton that “the common law
requires that there should be a new cause whereof the country
may have intelligence or knowledge, . . . for livery of
seizin was first invented as an act of notoriety. . . . For
like reason, when a use shall pass, there had to be by the com-
mon law a contract, or a public and notorious consideration.”*
This cause was a different thing from the motive.”
Yaluable and Good.— It was necessary that it be either some-
thing of value, or be what was termed a good consideration.”
Good consideration as distinguished from a valuable consid-
eration is the interest and natural love and affection which ex-
ists between near relatives." A good consideration will support
an executed promise,” but will not support an executory one.”
JMarriage is a valuable consideration, and there is no other
consideration as much respected in the law. It is a valuable
consideration to support an ante-nuptial settlement, and on
1 Blanchard v. McDougal, 6 Wis.
167; 70 Am. Dec. 458; Ellis v. Carey,
74 Wis. 176; 4 L. R. A. 55; Alderson
v. Maddison, L. R. 7 Q. B. D. 174; 8
App. Cas, 467.
2 In re Kerns' Estate. 171 Pa. St.
155. See remarks of Mitchell, J., ante,
p. 734.
3 Holmes’ Hist. Com. Law, 253. See
also Sherington v. Strotton, Plowd.
298, at p. 302 (1565).
4 Wilmot, J., in 3 Burr. 1670, infra,
states that consideration was like
deliberation, reflection, solemnity;
and Mansfield said that the reason
for seizin, sealing, etc., was upon the
same principle as the statute of
frauds. Id. 1669.
5 Philpot v. Gruninger, 14 Wall. 570.
See Ellis v. Clark, 110 Mass. 389.
6 Infra, p. 746.
7 Sherington v. Strotton, Plowd.
298; King v. Thompson, 9 Pet. 204;.
In re Kerns’ Estate, 171 Pa. St. 55.
8 Priester v. Priester, Rich. Eq. Cas.;
23 Am. Dec. 191; Fink v. Cox, 18.
Johns. 145; 9 Am. Dec. 191.
9 Kirkpatrick v. Taylor, 43 III. 207;
In re Kerns' Estate, Supra.
"744 TEHINGS. [$ 601.
grounds of sound public policy is upheld with steady resolu-
tion." To make such a settlement void as a fraud upon credit-
ors it is necessary that both parties participate in the fraud.”
In Simple Contracts.-The court of king's bench, Wilmot and
Mansfield sitting, decided that a written contract as to a mer-
cantile transaction” was enforceable without pleading and prov-
ing a consideration, but this decision was emphatically declared
never to have been the law of England.*
It may now be considered undisputed that our law will not
enforce a simple contract between the original parties unless
based on a good or valuable consideration received or incurred
for the promise.”
Formal deeds in the English law were enforceable without
reference to a consideration, while on the other hand the obli-
gation of the party to perform a simple agreement could only
be compelled in the courts, because his obligation rested upon
a duty growing out of a benefit received by him, or a harm in-
curred to the other party because of his refusal to comply with
his promise."
1 Champion v. Cotton, 17 Wes. Jr. and the parties had a copy delivered
264; Hedring v. Wickham, 29 Gratt. to them under seal. This was not
628; Bradish v. Gibbs, 3 Johns. Ch. the case with mere pacts or prom-
.523. - ises, which might intervene by means
2 Maguire v. Thompson, 7 Pet. 348; of any informal words, and between
Prewit V. Wilson, 103 U. S. 22. absent parties. Cooper's Justinian,
8The restrictions pointed out by p. 587. See also 1 Pollock, Contracts,
‘both the judges are generally over- pp. 6–8.
looked. They confined their views 4 Rann v. Hughes, 7 T. R. 346.
to mercantile cases. The case was a 5 Cottage St. M. Ch. v. Kendall, 121
letter of credit promising to honor Mass. 528.
drafts in the future. Wilmot, J., 6 Sherington v. Strotton, Plowd.
said he did not say it was always 298; Anson on Contracts, 62; Bristow
good if in writing. Page 1671. Cooper v. Lane, 21 Ill. 194. “A consideration
says that Justice Wilmot seems to of Some sort or other is so necessary
have had in his mind the obligatory to the forming of a contract that a
effect given by the Roman law, where nudum pactum or agreement to do or
the prescribed forms of verbal stip- pay something on one side, without
ulations were observed. See Inst. 3, any compensation on the other, will
16, 1. ; not at law support an action, and a
De Verbis Stipulationem.— But man cannot be compelled to perform
among the Romans the practice was it.” 3 Broom & Hadley’s Com. 159.
to put all nominate contracts and Thus, a mere voluntary service will
stipulations in writing, which when not uphold assumpsit, unless moved
carried to a magistrate were inserted by a previous request. Lampleigh v.
£nter acta, registered or recorded, Brathwait, Hob. 105; 1 Smith's L. C.
§ 601.] THINGS.
'745
Cooper says the doctrine of nudum pacłum has been long
recognized in the English law, Bracton introducing it from
the Roman law; and he adds that Wilmot, Justice,” seems to
have had in mind the obligatory effect of the Roman law,
where the prescribed forms and verbal stipulations were ob-
served.
“A bargain without a consideration,” says the Lord Chancel-
lor in Middleton v. Kenyon,” “is a contradiction in terms and
cannot exist.” Exceptions to this, of course, are sealed instru-
ments and negotiable paper.
With respect to other parol contracts, whether verbal or
written, we have adopted in substance the civil-law doctrine
on this subject, and the want of consideration will defeat a re-
covery on such a contract.”
How Consideration, Arises.—Any act performed at the ex-
press or implied request of the promisor, whether it be in the
nature of an affirmative service or conveyance or any suspen-
sion of a right or forbearance of action, is a consideration, al-
though no actual benefit accrues to the person promising;" but
a mere voluntary courtesy or expression of intention is not
sufficient." The value is entirely immaterial.” Where one ob-
tains what he bargains for, the law does not weigh values.”
267. And while a gratuitous promise
may form the subject of a moral ob-
ligation, it creates no legal responsi-
bility. Broom's Legal Maxims, 745.
See Cumber v. Wane, 1 Str. 436; 1
Smith’s L. C. 633.
1 See the matter fully explained.
Sherington v. Strotton, Plowd. 298–
302 (about A. D. 1565); Joselyn v. La-
Ciere, 12 Mod. 295.
2.In Pillans v. Van Mierop, 3 Burr.
1663,
3.2 VeS, Jr. 408.
4 Cooper's Justinian, 587, 588.
5 Moore v. Davis, 49 N. H. 45; 6
Am. Rep. 460. Abandoning the use
of tobacco is a sufficient considera-
tion to sustain an action on a prom-
ise to pay a sum of money if the
plaintiff would stop. Talbot v. Stem-
mons, 89 Ky. 222; 5 L. R. A. 856.
Attendance at a university as a stu-
dent is a good and sufficient consid-
eration to Support a promise to pay
annually a sum of money. Hoshor
v. Kautz (Wash.), 53 Pac. Rep. 51.
6 Hind v. Holdship, 2 Watts, 104;
26 Am. Dec. 107; Kramer v. Old, 119
N. C. 1; 34 L. R. A. 389; Lawrence v.
McCalmont, 2 How. 426.
7 Lampleigh v. Brathwait, Hob. 105;
1 Smith's L. Cas. (9th ed.) 281. Where
the vendor has received back the sub-
ject of sale, and delivered up the
securities given for balance of the
purchase price, a statement that he
intended to give the vendee all he
got above a certain sum is a mere
nudwm pactum. Johnson v. Ackless,
Breese, 92.
8 Condrey v. West, 11 III. 146;
Anson on Contracts, 64. An agree-
ment to pay $100 for the ice which
may form. On a certain pond is en-
746 TEIIINGS,
[$601.
Where property constitutes the consideration, there can be no
failure unless there is a warranty or false representations."
In equity the value of the consideration may constitute im-
portant evidence on the question of fraud;” but there is no case
of mere inadequacy, independent of other circumstances of
fraud or fiduciary relationship, or an overreaching of some sort,
where the contract is held void.”
As to creditors, however, the amount of the consideration must
be such as to bear a reasonable proportion to the amount of the
contract.” The amount paid may be the extent of the recovery
allowed on notes held as collateral where a defense exists be-
tween original parties.”
Species of Consideration — Mutual Promises.—As is com-
monly said, a promise by one person is a good consideration for
the promise or undertaking on the part of the person to whom
the promise is made. To render such a contract binding the
promises must have been concurrent as well as mutual; that is,
they must actually exist at the same time and bind both at the
same time."
For example, if A. agrees to rent a farm to B., and B. agrees
to pay a certain price, the mutual promises are sufficient con-
sideration for the agreement, and either or both may enforce
it if it is in other respects valid." -
An interchange of notes is an example, and the failure of one
person to pay would not constitute a failure of consideration,
but a mere breach of the contract.”
forceable although no ice of any value
forms. Townsend v. Water Co., 63
Ill. 126. See Smith v. Williams, 1
Murph. 426; 4 Am. Dec. 564. A void
patent right is not a valuable con-
sideration for a promise though both
parties believe it is valid. But if the
right is valid the consideration is
valid without regard to the value or
utility of the machine. Even if it be
Void, and the fact that it is in litiga-
tion is known to the vendee, the fact
that it is void is no defense to an
action on notes given for it. Jones
v. Burnham, 67 Me. 93; 24 Am. Rep.
10; Dickinson v. Hall, 14 Pick. 217;
Lester v. Palmer, 4 Allen, 146; Nash
v. Lull, 102 Mass, 63,
1 Leggett v. Sands, 60 Ill. 163.
2 Anson on Contracts, 66; McArtee
v. Engart, 13 Ill. 242.
8 Hind v. Holdship, 2 Watts, 104;
26 Am. Dec. 107.
4 Patrick v. Patrick, 77 Ill. 555; Bay
v. Cook, 31 Ill. 337.
5 St. P. Bank v. Cannon, 46 Minn.
95. See “Negotiable Paper.”
6 McArtee v. Engart, 13 Ill. 242;
Olney v. Howe, 89 Ill. 560; U. & S.
R. R. Co. v. Brinckerhoff, 21 Wend.
139.
7 Dorsey v. Packwood, 12 How. 126;
Morrow v. Southern Exp. Co., 101 Ga.
810.
8 Gage v. Lewis, 68 Ill, 604.
§ 601.]
747
THINGS.
Where several agree to combine for a common object, the
promise of each is good consideration for the promise of the
others.
instances."
Subscriptions to stock or for an object of charity are
The relinquishment, forbearance, or waiver of any legal
right at the request of another is a valuable consideration for
a promise.”
The compromise of a doubtful right of action, provided the
claimant honestly believes in his cause, constitutes a consider-
ation, but a claim known to be unfounded and used as a pre-
text to extort money is not.”
If the claim as made could under no circumstances constitute
a cause of action it is different.”
1 Whitsett v. Pre-emption Church,
110 Ill. 25; Johnson v. Allerwein
Univ., 41 Ohio St. 527; Conrad v. La
Rue, 52 Mich. 86. A recent decision
by the Maine court discussed the dis-
tinction between subscriptions to
business enterprises and for chari-
table objects (Bryant Pond, etc. Co.
v. Felt, 87 Me. 234): “1. A sub-
scriber to the capital stock of an un-
organized business corporation has a
right to withdraw from the enter-
prise, provided he exercises the right
before the corporation is Organized
and his subscription is accepted.
Such a subscription is not a Com-
pleted contract. See Cook, Stock and
Stockholders, Š 169. 2. Such rule,
however, does not apply to voluntary
and gratuitous subscriptions to pub-
lic or charitable objects, which, when
accepted and acted upon, become
binding, nor to subscription papers
so worded as to become binding Con-
tracts between the subscribers them-
selves.” The second point is obiter in
that case and cannot be said to be a
rule uniformly held. Rogers v. Gal-
loway College, 64 Ark. 627; 39 L. R.
A. 636; Hamilton College v. Stewart,
1 N. Y. 581; Presbyterian Church v.
Cooper, 112 N. Y. 511. Cf. Roberts
v. Cole, 103 N. Y. 600. See learned
note, Sub., Lampleigh v. Brathwait,
1 Smith's L. Cas. (9th ed.) 281-306.
2 Anson on Contracts, 66; Miller v.
Hawker, 66 Ill., 185; Union Bank v.
Geary, 5 Pet. 99; Houck v. Frisbee,
66 Mo. App. 16; Stearns v. L. S. & M.
S. R. Co. (Mich.), 71 N. W. Rep. 148.
Thus, forbearance to prosecute a legal
claim, whether such claim be reason-
able or unreasonable, is a good consid-
eration. Callisher v. Bischoffsheim,
L. R. 5 Q. B. 449; Prout v. Pittsfield,
154 Mass. 450. Otherwise if the
claim is in fact invalid. Gunning v.
Royal, 59 Miss. 45.
8 McKinley v. Watson, 13 Ill. 140;
Heaps v. Dunham, 95 Ill. 584;
Sweitzer v. Heasley, 13 Ind. App.
567. The innocence of one of a
Charge of bastardy is no defense in
an action on a note given by him in
compromise of the proceedings. Bil-
lingsley v. Clelland (W.Va.), 23 S. E.
Rep. 812. The consideration for a
compromise cannot be the settle-
ment of a suit which amounts to an
agreement to compound a felony.
Sloan v. Davies (Iowa.), 74 N. W. Rep.
922; Smith v. Pinney, 32 Vt. 282. Cf.
Fink v. Smith, 170 Pa. St. 124. There
are some authorities, however, which
hold a view contrary to the first
proposition of this sentence. Gun-
ning v. Royal, 59 Miss. 45.
4 Mulholland v. Bartlett, 74 III. 58;
Heaps v. Dunlap, 95 Ill. 583.
748 THINGS,
[$ 601.
Past, Æðecuted or Moral.—There is a class of considerations
called past or executed, where the thing which caused the al-
leged promise was wholly done before the promise, but these
fall under the same principle as a moral consideration. Unless
there was a request for that which constitutes the consideration
previous to its performance, a past benefit is no consideration.
This previous request may, however, be implied, where, for ex-
ample, one accepts and retains the benefit of work voluntarily
done by another for him, and an acceptance will be implied by
standing by and approving." If One is compelled to do for an-
other what the other in law should do,” or if one does volun-
tarily what he is not bound to do for another who is bound to
do the thing, in all these cases a subsequent promise is binding.”
A mere moral obligation will not support an action in the
courts," but if there be a legal obligation resting on the person
promising to do what another does for him, a subsequent prom-
ise to repay binds, although the service was performed without
request;" as, if one pay another's taxes, or bury his wife or
child.” In pleading (theory) it is necessary to aver a considera-
tion, and both prior request and a subsequent promise; but in
fact, where one party derives a benefit from an act or service,
it is equivalent to a previous request and may be so alleged.
Saunders asserts that where a man pays a sum of money or
buys goods for me without my knowledge or request, and after-
wards I agree to the payment or receive the goods, this is
equivalent to a previous request." But this is stated too broadly.
By merely paying a debt one does not become a creditor, nor is
the payment without request sufficient consideration for a prom-
ise to repay.” -
There is no authority for the assertion that if one pays the
1 De Wolf v. Chicago, 26 Ill. 443;
Walker v. Brown, 28 Ill. 386; Moore
v. Mason, 103 Mass. 560; Silverthorn
v. Wylie, 96 Wis. 69.
2 Greenleaf on Ev., secs. 107–8.
3 McMorris v. Herndon, infra.
4 See ante, p. 744; Thorne v. Deas,
4 Johns. 84; Eastwood v. Kenyon, 11
Ad. & El. 348. A son being able is
morally bound to assist his indigent
parent, but a promise to pay for past
support is not binding. Edwards v.
Davis, 16 Johns. 281; Cook v. Bradley,
7 Conn. 57.
5 McMorris v. Herndon, 2 Bailey L.
56; 21 Am. Dec. 515.
6 Jenkins v. Tucker, 1 H. Blk. 90.
7 Per Saunders, sub., Osborn v.
Weston, 1 Saund. 264. Cf. Hicks v.
Burhans, 10 Johns. 243.
8 Eastwood v. Kenyon, 11 Ad. &
Bl. 348; 39 E. C. L. 142; Frear v.
Hardenbergh, 5 Johns. 272; 4 Am.
Dec. 356.
§ 602.] TEIINGS.
'749.
debt of another, or performs an act beneficial to him, he be-
comes a creditor thereby without any previous request or sub-
sequent promise," and it is only under certain circumstances
that a subsequent promise will bind.
The extent to which the rule may be pushed is that, where
One man does an act for another which that other is bound in
law to do, and which, in case he neglects it, it is still the duty
of Some One to perform, like burying the kin, the law may imply
both the previous request and the subsequent promise, and even
though the person bound expressly refuses to perform, or for-
bids the act.”
But the mere conferring of a benefit, as voluntarily paying
a debt, building a fence, tilling the soil, furnishing supplies,
and the like, will not raise an assumpsit; * and it is only where
that which is alleged to be the consideration has at one time
been an obligation, though it may no longer be so, that it con-
stitutes sufficient consideration for a new promise; for example,
a debt barred by the statute of limitations, the previous debt
of a bankrupt, or the unenforceable contract of an infant.”
It is safe to say that a moral obligation will not support an
unexecuted promise, except in cases where a valid considera-
tion once existed.”
SEC. 602. The Character and Relation of Stipulations.—
There is nothing more difficult to understand than the rules
relating to the character, relation and dependence of stipula-
tions in contracts containing various mutual covenants."
The question in such cases is whether the performance of
the respective covenants on the one side depends (i. e., is con-
1 Huck v. Flentye, 80 Ill. 256. See
2 Greenleaf, Ev., secs. 107–8, and
notes.
2 Fairchild v. Bell, 2 Brev. 129; 3
Am. Dec. 702.
* Boston Ice Co. v. Potter, 123 Mass.
28; 25 Am. Rep. 9. &
4 Eastwood v. Kenyon, 11 Ad. &
El. 348; Sturges v. Crowninshield, 4
Wheat. 122; Harwood v. Kiersted,
20 Ill, 367; Edward v. Davis, 16 Johns.
282.
* Cook v. Bradley, 7 Conn. 57; 18
Am. Dec. 79; Mitchell v. Lyman, 77
Ill. 530. If I see my neighbor's prop-
erty in flames, and without his
knowledge or request I exert my ef-
forts to extinguish the fire and save
the property, I cannot maintain an
action for the value of the labor.
Bartholomew v. Jackson, 20 Johns.
28.
6 New Orleans v. Tex. Pac. Ry. Co.,
171 U. S. 312–336. This case explains,
and applies the rules provided for in
the Louisiana code, which follows.
the French civil law, but are based
upon the same principles which per-
meate the common law.
750 THINGS. [$ 602.
ditional) upon the performance of the covenants on the other
side, or whether the stipulations are independent of each other,
and must be performed irrespective of performance by the
other side." t
If the performance of one depends upon the performance of
the other, then it is said that they are mutual dependent cove-
nants or conditions.
If not, they are independent covenants.
Covenants and Conditions Distinguished.— It is of the ut-
most importance that the technical distinction between a cove-
nant and a condition be understood.
A covenant is an executory, promissory agreement to do or
perform, and for a breach of this promise an action will lie for
the damages caused by the breach.
A condition is an act required to be performed, or required
not to be performed, or an event the happening of which shall
dispense with further performance; and the effect of a condi-
tion is to put an end to and forfeit all rights under the mutual
stipulation to which it relates. But a condition does not sustain
an action for damages.” *
One can readily understand that a party might be willing to
enter into a contract agreeing to do, or to sell, upon condition
that if he did not do what he promised he should forfeit the con-
sideration, where he would not be willing to make the same con-
tract coupled with the responsibility to answer for uncertain
damages which might be caused by his breach; and in order that
the practitioner may not bring an action upon a contract which
is in fact a mere condition, it is essential that the distinction be
thoroughly understood.”
1 These rules apply to covenants in
all classes of contracts and also to
deeds and grants in wills; and while
the citation is purposely restricted to
as few cases as will illustrate the rule,
the cases have been selected with a
view to illustrate many phases of the
subject.
2 Hale v. Finch, 104 U. S. 266;
Blanchard v. D., L. & L. M. Ry. Co.,
31 Mich. 46; Palmer v. Plank-road
Co., 11 N. Y. 389; Close v. Burling-
ton, C. R. & N. Ry. Co., 64 Iowa, 149.
These conditions are called in the
Louisiana code suspensive conditions,
an appellation which expresses with
peculiar felicity the effect of the stip-
ulation. New Orleans v. Tex, Pac.
Ry. Co., 171 U. S. 333.
3 For example, in Halev. Finch, 104
TJ. S. 266, the action was brought
for the damages occasioned by the
breach of the stipulation, but it was
held a mere condition; Consequently
no action could lie. So, in Palmer
v. Plank-road Co., 11 N. Y. 389, it was
§ 602.] THINGS.
751
JDependent and Independent Covenants.-What is meant by
dependent and independent covenants is that, where a covenant
is dependent, its performance is a condition to requiring per-
formance on the other side," while if the covenants are inde-
pendent it is obligatory upon each party to perform his agree-
ment irrespective of performance on the other side.
So it is said in One case that performance is a condition pre-
cedent, while in the latter it is not.
The law permits men to have as many contracts between
each other, existing at the same time, as they desire. These
may all be embraced within one document containing as many
covenants on different subject-matter as the parties desire, or
they may be evidenced by different documents; and although
they may be in different documents and executed on different
days, they may relate to one and the same transaction and
constitute in reality one contract with covenants or conditions,
the one dependent upon the other.”
When a plurality of subjects is embraced or a multiplicity
of agreements is found in one contract, whether made up of
several documents or contained in one instrument, the ques-
tion presents itself to the court as to the relation and depend-
ence of these stipulations, and it is for the court to determine
whether they amount to mutual independent covenants or
whether some of them are conditions, and if so whether they
are conditions precedent or subsequent.”
said that “there may be a condition
without a covenant, and that where
the language imports a condition
merely, and there are no words im-
porting an agreement, it cannot be
enforced as a covenant, but the only
remedy is through a forfeiture of the
estate.” And further: “It by no
means follows, because a grantee
consents to take an estate subject to
a condition, that he also consents to
obligate himself personally for the
performance of the condition. Many
cases might be imagined in which
one would be willing to risk the for-
feiture of the estate, while he would
be altogether unwilling to incur the
hazard of a personal responsibility in
addition.” The same doctrine is held
in Blanchard v. Railroad Co., 31 Mich.
43; Close v. Burlington, C. R. & N.
Ry. Co., 64 Iowa, 149.
1 In such case the contract may ex-
pressly recite that “in consideration
of the performance of the promises
and agreements,” etc. Dermott v.
Jones, 23 How. 220; Sheerer v. Moses,
84 Ill. 448.
2 Hunt v. Livermore, 5 Pick."895;
Bradley v. Marshall, 54 Ill. 173.
3 The leading American case on
the subject of dependent and in-
dependent contracts is Mill Dam
Foundry v. Hovey, 21 Pick. 417.
48
752 THING.S. [$ 602.
Several Kinds of Covenants.--It is sometimes said that cove-
nants are conditions in certain instances, but more accurately it
may be said that a covenant may provide that its performance
be a condition. . -
Lord Mansfield said: “There are three kinds of covenants.
Such as are called mutual and independent, where either party
may recover damages from the other for the injury he may
have received by a breach of the covenants in his favor, and
where it is no excuse for the defendant to allege a breach of
the covenants on the part of the plaintiff.
“2. There are covenants which are conditions and dependent,
in which the performance of one depends upon the prior per-
formance of another, and therefore, until this prior condition
is performed, the other party is not liable to an action on his
covenant. - -
“3. There is also a third sort of covenants, which are mutual
concurrent conditions," to be performed at the same time; and
in these, if one party was ready and offered to perform his part,
and the other neglected or refused to perform his, he who was
ready and offered has fulfilled his engagement, and may main-
tain an action for the default of the other; though it is not cer-
tain that either is obliged to do the first act.”
There is also an additional class of covenants not mentioned
by Lord Mansfield in this connection, known as conditions sub-
sequent. •
Fntire Contracts Distinguished from Mutual Covenants and
Conditions.— Entire contracts do not require that there be any
mutual, dependent stipulations, but merely that it appear from
the contract to do or perform, though it be entirely on one side,
that the contract be completely and entirely performed before
a recovery is allowed upon the contract.”
Jºules for Determining the Character of Covenants and Sºpu-
Žations.—The controlling rule of construction for settling these
questions is to seek for the evident intent and meaning of the
parties as expressed in the instrument, construed in the light
Its doctrines, based on the English 1 Jones v. Barkley, Doug. 690. See
cases, are universally approved. Bos- note sub., Gardiner v. Carson, 15.
ton Blower Co. v. Brown, 149 Mass. Mass. 500 (Little-Brown's ed.).
421; New Orleans v. Tex. Pac. Ry. 22 Pars. Cont. *527.
Co., 171 U. S. 334. - 3 Post, sec. 603.
§ 602.] THINGS.
753
of circumstances, rather than to place complete reliance upon
arrangement and phraseology."
It is plain that in these cases, where the contract expressly
provides that performance On the One side shall be a concur-
rent act or shall precede performance on the other side, that
such precedent performance is a condition; and if, although
not so expressly stated, it appears that such was the intention,
the effect is the same; and this is the true inquiry in all cases.”
In a note to Pordage v. Cole, Mr. Williams formulated the
following rules, which have been generally approved and fre-
Quently applied: ”
“1. If a day be appointed for payment of money, or part of
it, or for doing any other act, and the day is to happen, or
nay happen, before the thing which is the consideration of the
money, or other act, is to be performed, an action may be
brought for the money, or for not doing such other act before
performance, for it appears that the party relied upon his
Temedy, and did not intend to make the performance a condi-
tion precedent; and so it is where no time is fixed for perform-
ance of that which is the consideration of the money or other
act.* -
“2. When a day is appointed for the payment of money, etc.,
and the day is to happen after the thing which is the consid-
eration of the money, etc., is to be performed, no action can
be maintained for the money, etc., before performance.
1 Gardiner v. Carson, 15 Mass. 500.
The name by which the parties des-
One's bargain is to be performed ac-
cording as he makes it. If he makes
ignate a stipulation is not conclusive.
Blanchard v. D., L. & L. M. Ry. Co.,
31 Mich. 43.
2 Mill Dam Foundry v. Hovey, 21
Bick. 417; Tompkins v. Elliot, 5
Wend. 496; Bank of Columbia v.
Hagner, 1 Pet. 455, and note; Stool-
fire v. Royse, 71 Ill. 223.
3 See 2 Pars. COnt. *528–33.
41 Saund. 810; Goldsborough v.
Orr, 8 Wheat. 217; Dermott v. Jones,
28 How. 220; Gage v. Lewis, 68 Ill.
604; Willets v. Burgess, 34 Ill. 494.
TOrd Holt further said, in Thorp v.
Thorp, 12 Mod. 455: “What is the
reason that mutual promises shall
bear an action without performance?
a bargain, and relies on the other’s
covenant or promise to have what
he would have done to him, it is his
own fault. If the agreement be that
A. shall have the horse of B., and A.
agree that B. shall have his money,
they may make it so, and there needs
no averment of performance to main-
tain an action on either side; but if
it appear by the agreement that the
plain intent of either party was to
have the thing dome to him performed,
before his doing what he undertakes
of his side, it must them be averred.”
And see Cunningham v. Morrell, 10
Johns. 202; Loud v. Pomona Land,
etc. Co., 153 U. S. 564,
754. THINGS.
[$602.
“3. Where a covenant goes only to part of the consideration
On both sides, and a breach of such covenant may be paid for
in damages, it is an independent covenant, and an action may
be maintained for a breach of the covenant on the part of the
defendant without averring performance in the declaration."
“4. But where the mutual covenants go to the whole consid-
eration on both sides, they are mutual conditions, and perform-
ance must be averred.” - . .
“5. Where two acts are to be done at the same time, as where
A. covenants to convey an estate to B. on such a day, and in
consideration thereof B. covenants to pay A. a sum of money
on the same day, neither can maintain an action without show-
ing performance of, or an offer to perform, his part, though it
is not certain which of them is obliged to do the first act, and
this particularly applies to all cases of sale.”
“6. It may also be laid down as a rule that stipulations or
promises may be dependent from the nature of the acts to be
performed, and the order in which they must necessarily pre-
cede and follow each other. “When the act of one party must
necessarily precede any act of the other, as where one stipu-
lates to manufacture an article from materials to be furnished
by the other, and the other stipulates to furnish the materials,
the act of furnishing the materials necessarily precedes the act
of manufacturing and will constitute a condition precedent
without express words.”””
Condition Precedent.—This act may be so related to the
contract or performance in point of time as to require the per-
formance before the party obtains any rights in or to the sub-
ject-matter of the contract, and such a stipulation is called a
condition precedent. -
A condition. Subsequent is an act to be performed subsequent
to the entering into the contract and after the party may have
1 This latter rule is a repetition of
an expression of Lord Mansfield in
Boone v. Eyre, 1 H. BI. 273. “The
distinction is very clear. Where mut-
ual covenants go to the whole of the
Consideration on both sides, they are
mutual conditions, the one precedent
to the other. But where they go
Only to a part, where a breach may
be paid for in damages, there the de-
fendant has a remedy on his cove-
nant, and shall not plead it as a con-
dition precedent.” Pars. on Cont.
531, note.
2 Mill Dam Foundry v. Hovey, 21
Pick. 417; Boston Blower Co. v.
Brown, 149 Mass. 421.
8 Stoolfire v. Royse, 71 Ill. 223.
4 Mill Dam Foundry Co. v. Hovey,
Suſp?d.
§ 602.] THINGS. '755
obtained rights in and to the subject-matter, the non-perform-
ance of which condition subsequent may give rise to a forfeit-
ure of all rights under the contract and the subject-matter, and
in this manner cause the discharge of all obligations under it."
The usual implied condition subsequent is the happening of
some event by what is called the act of God, and such a condi-
tion is held to arise by operation of law.”
It is customary for parties to stipulate that certain subsequent
conditions may avoid the contract. For example, ship-owners
and charterers usually contract to carry safely except as against
the act of God, public enemies, etc., and, they might add, other
dangers and accidents incident to navigation. If any of these
excepted things occurred it would be a condition subsequent.”
The numerous grants of land by the public to railway corpo-
rations for constructing railways usually contain express con-
ditions subsequent; i. e., the grant is conditioned upon the
completion of the road, and then the completion would consti-
tute a condition precedent to obtaining the grant.
The same contract may contain an express condition upon
the perpetual maintenance of the road, and this perpetual main-
tenance is a condition subsequent, for a violation of which the
grant would be forfeited.”
1 Hale v. Finch, 104 U. S. 266;
Blanchard v. D., L. & L. M. Ry. Co.,
31 Mich. 42, and note.
2In the very important case of Mill
Dam Foundry v. Hovey, 21 Pick. 441,
Chief Justice Shaw said: “The dis-
tinction is now well settled between
an obligation or duty imposed by
law and that created by covenant
or act of the party. When the law
Creates a duty, and the party is dis-
abled from performing it without
any default of his own, the law will
excuse him; as, in waste to a tene-
ment, if the same be destroyed by
tempest or enemies, the lessee is ex-
cused. But when the party by his
Own contract creates a duty or charge
upon himself, he is bound to make it
good notwithstanding any accident,
by inevitable necessity, because he
might have provided against it by
his own contract.”
3 Anson on Contracts, 266. In Del.
& L. W. Ry. Co. v. Bowers, 58 N. Y.
573, a contract to deliver a specified
Quantity of coal provided that if the
business was interrupted by “strikes,
floods” and other events specified,
no damages should be recovered for
breach. A part only was delivered;
payment refused; the excuse was a
strike; a recovery was allowed. The
court in its opinion says: “But par-
ties may agree in advance under what
circumstances and upon what con-
tingency the contract shall termi-
nate, or either party be absolved
from its obligations; and if the cir-
cumstances occur or the Contingency
happen, even by the voluntary act of
the party claiming the benefit of the
stipulation, it will be available to him
in the absence of any fraud or mala,
fides.”
4 Blanchard v. D., L. & L. M. Ry.
Co., Supra. -
756 THINGS. [š 603.
SEC. 603. Entire Contracts' are such as expressly or im-
pliedly provide for complete performance upon the one part
according to the terms of the contract, and anything less is a
breach.” They are therefore a species of conditional contracts.”
Of course it is to be understood that a portion of the stipula-
tions may be entire and conditional and others mutual and in-
dependent,” or those on one side apportionable while the other
is not. **
It is obviously within the right of the parties to expressly
stipulate that they shall furnish certain material, labor, ma-
chinery or property, or perform a certain service for a certain
and definite period of time, and be entitled to nothing unless
exact and literal performance is made.” It is their right to make
that agreement absolute and independent of any condition
whatever — the act of God, inevitable accident, or any matter
within their own control. The question in all cases is one of
intention unless expressly mentioned. A disability arising from
the act of God is impliedly excepted, while a casualty or mere
accident not so termed is not. In such cases complete perform-
ance is a condition to a recovery on the contract; but by a de-
parture from the strict rule of the common law, that a contract
cannot be implied where an express one exists, it is held in
most states that a recovery may be had for a part performance
where the benefit received under the contract is abandoned
by mutual consent, or, in case of breach, the benefit exceeds the
damage for the breach." - .
But it is more common for the parties to make the agree-
ment to furnish the property or labor without any such specific
stipulation governing the contingency of abandonment or fail-
ure to perform.
1 It might be more accurate to say
entire stipulations or an entire agree-
ment.
2 Cutter v. Powell, 6 T. R. 320; 2 S.
L. C. 1212; Fenton v. Clark, 11 Vt. 557;
Leopold v. Salkey, 89 Ill. 412; 31 Am.
Rep. 100, note; Pope v. Porter, 102 N.
Y. 366. -
3 Mill Dam Foundry v. Hovey, 21
Pick. 417; Wooten v. Walters, 110 N.
C. 251.
* White v. Atkins, 8 Cush. 367;
Jones v. Dutton, 7 Brad. 580. Al-
though a decision of an inferior court
it is a very instructive case.
5 Cutter v. Powell, supra; Fenton v.
Clark, 11 Vt. 557; Britton v. Turner,
6 N. H. 481; 26 Am. Dec. 713.
6 This is the doctrine of which Brit-
ton v. Turner, supra, is the leading
case, and opposed to it, Olmstead v.
Beal, 19 Pick. 529, may be called the
ruling case. The states are pretty
evenly divided on the question.
§ 603.] TEIIINGS. 757.
Such contract is regarded as an entire contract, and complete
performance, under ordinary circumstances, is a condition pre-
cedent to a recovery on the contract."
| There seems to be no conflict on this point.” But the har-
mony in the decisions is maintained only to the point of deny-
ing a recovery based specifically on contract.
Performance Prevented by Act of God.”—There is a seeming
conflict of decisions upon the question as to whether, in cases
where complete performance of entire contracts is prevented
by unavoidable casualty or death of the party, which would
be reckoned as an act of God.
The case of Cutter v. Powell is generally cited as the great
leading case on the doctrine of entire contracts relating to per-
sonal service. Under the peculiar circumstances of that case
it was held that, notwithstanding the plaintiff's testator per-
formed a part of his contract, and was prevented from full per-
formance by death, no recovery could be allowed for the value
of the part performance.
The facts and circumstances involved in the decision of Cut-
ter v. Powell take the case out of the general rule. In that
case a seaman contracted for a larger rate of wages than was
customary on the express provision that he proceeds, continues,
and does his duty on board for the voyage, and he died before
the ship reached the port.*
gent v. Smith, 1 C. P. D. 423; and see
McArthur V. Sears, 21 Wend. 190;
Mill Dam Foundry v. Hovey, supra;
School Dist. v. Dauchy, 25 Conn. 580;
Schwartz v. Sanders, 46 Ill. 18. The
phrase occurs most frequently in con-
nection with the limitation of liabil-
1 The student must observe the dis-
tinction between a recovery on the
Contract and a recovery of the value
of a part performance, or, as it is
termed, a recovery on the quantum.
Therwit. See Andrews' Steph. Pl. 86;
McMillan V. Malloy, 10 Neb. 228.
* Olmstead v. Beal, supra.
3 Cutter v. Powell, 6 T. R. 320.
What constitutes an “act of God” is
not susceptible of close definition.
It has been said to be equivalent to
inevitable accident. But this is not
strictly correct. It excludes all idea
of human agency, and has been said
to mean such a direct and violent
and sudden and irresistible act of
nature as could not have been fore-
Seen, Or, if foreseen, prevented. Nu-
ity of carriers and will be referred
to again under that head.
4 The instrument was as follows:
“Ten days after the ship Governor
Parry, myself master, arrive at
Liverpool, I promise to pay to Mr.
T. Cutter the sum of thirty guineas,
provided he proceeds, continues, and
does his duty as second mate, in the
said ship, from hence to the port of
Liverpool. Kingston, July 31st, 1793.”
758 - THINGS. - [$ 603.
Complete performance was, according to the particular cir-
cumstances, held to be a condition precedent to recovery.
Chief Justice Kenyon stated that the contract was to receive
a larger sum than was customary wages if the whole duty were
performed, and nothing unless the whole of that duty were
performed; it was a kind of insurance.
Lawrence, J., distinguished the case from the common case
of a hired servant. -
The general rule with regard to the common case of con-
tracts of service is that the servant shall be entitled to his
wages for the time he serves, though he does not continue in
service during the whole year, except only in the case of vol-
untary abandonment and rightful discharge; and even in these
cases most states allow a recovery." -
If his complete performance is prevented by the act of God,
such as sickness, casualty or death, there seems to be no con-
flict of authority upon this proposition, and the obiter of Cut-
ter v. Powell supports the general rule, and its facts are clearly
distinguishable from the ordinary cases supporting the rule.”
In Cook v. McCabe,” Cassoday, J., points out the distinc-
tion as follows: “In Cutter v. Powell the sailor was to be paid
the sum named, ‘provided he proceed, continue, and do his
duty on board for the voyage; ' and that case, in the language
of Allen, J., in Wolfe v. Howes,” “is distinguishable in this: that
by the peculiar wording of the contract it was converted into
a wagering agreement, by which the party, in consideration of
an unusually high rate of wages, undertook to insure his own
life, and to render, at all hazards, his personal services during
the voyage, before the completion of which he died.’” -
Where complete performance is prevented without the fault
of the promisor, but by a cause not amounting to the act of God,
the case is not so clear and is distinguishable in principle; but
in the absence of any special stipulation the weight of author-
ity largely favors a recovery upon the quantum meruit for the
value of the service.”
1 Cutter v. Powell, 6 T. R. 320. 353 Wis. 250.
2 Leaver v. Morse, 20 Vt. 620, and 4 20 N. Y. 200.
Ryan v. Dayton, 25 Conn. 188, are 5 Schwartz v. Sanders, 46 Ill. 18;
cases distinguishing Cutter v. Pow- School Dist. v. Dauchy, supra; Ryan
ell. v. Dayton, 25 Conn. 188; Mill Dam
§ 603.] THINGS. 7.59
It will be observed that all these cases involve, in order to
allow recovery, an implied contract, where there has been an
express one." * .
Discharge, Rightful.—Where the servant is discharged for
cause there is a conflict of authorities, some courts holding he
may recover the full value of his services over and above the
damage to his employer, because of the act which constitutes
the ground for the discharge.”
Foundry v. Hovey, 25 Pick. 417;
|Britton v. Turner, supra. If, on the
whole, what has been received is bene-
ficial, a recovery may be had on a
quantum meruit. Eakin v. Hansom,
4 McCord (S. C.), 249. The case of Clay
v. Hodge, 181owa, 66, presents an able
exposition of this question by Judge
Tillon. In the course of the opinion
that learned judge said: “This cause
does not involve much in amount,
but yet presents a legal question of
the highest importance, and one in
relation to which the best jurists and
the ablest thinkers almost radically
differ. It is found by the referee that
the plaintiff has not performed in full
his contract. It is not found that the
defendant waived, prevented or dis-
pensed with its performance. Not
having performed the special con-
tract, he cannot recover (so all of the
authorities agree) on the contract.
Eyser v. Weissgerber, 2 Iowa, 463,468,
and cases cited; Corwin v. Wallace,
17 id. 374, referring to previous adju-
dication of same case. The contro-
versy is whether in such case he may
recover as upon a quantum meruit.
This question was settled in this state
by the case of Pixler v. Nichols, 8
Iowa, 106, which distinctly recog-
nized and expressly followed the case
of Britton v. Turner, 6 N. H. 481.
That celebrated case has been criti-
cised, doubted and denied to be sound.
It is frequently said to be good equity,
|but bad law. Yet its principles have
been gradually winning their way
into professional and judicial favor.
It is bottomed on justice, and is right
upon principle, however it may be
upon the technical and more illiberal
rules of the common law, as found in
the older cases. With the known and
natural disposition of courts and ju-
ries to disfavor the cause of him who
has broken his contract, and yet seeks
a recovery, and with the limitations
stated in Pixler v. Nichols, the appli-
cation of this rule will not be found
practically to work injustice to the
employer or contracting party who
is without fault. This rule will apply
to such cases as the one under con-
sideration. A formal acceptance of
the work, or an acquiescence in the
breach, is not necessarily essential to
recovery.”
1 This seems no objection, even in:
Massachusetts, in any case except
case of hiring of personal service.
Bowker v. Hoyt, 18 Pick. 555; Mc-
Millan v. Malloy, 10 Neb. 228.
*In such a case there can be no re-
covery for the breach. Bass Furnace
Co. v. Glasscock, 82 Ala. 452; 60 Am.
Rep. 748; Leopold v. Salkey, 89 Ill.
412; 31 Am. Rep. 93; Odeneal v.
Henry, 70 Miss. 172. And wages can
be recovered only to the time of dis-
charge. Hale v. Sheehan, 36 Neb.
439; Newman v. Reagall, 63 Ga. 755..
In other cases it is held that the dis-
charged employee is entitled to no.
wages since the last preceding peri-
odical payment. Beach v. Mullin, 34
N. J. L. 343; Hartman v. Rogers, 69.
Cal. 643.
760 THINGS. [$ 603.
The strict rule requiring a complete performance of entire
contracts as a condition precedent to a recovery either on the
contract or on a quantum meruit for the value of the benefit
Over and above the damage occasioned by the non-performance
seems now confined only to the contract of service," while on all
other contracts which of necessity must be for the furnishing
of property and material, a recovery may be had although
there is a breach of a contract and no complete discharge.”
Wrongful discharge of a servant in cases of contracts of hiring
entitles the servant to recover by all the authorities, the only
difference of opinion being as to the measure of damages and
the procedure to be adopted; i. e., whether he may wait until
the expiration of the term and sue upon the contract, or may
bring suit immediately upon breach of the contract for the
value of his services and damages; or whether he may have
several successive suits for instalments as they fall due.”
Woluntary Abandonment.—In case of voluntary abandonment
of the service by the servant, it was formerly held with strict-
ness that there could be no recovery, even though the contract
was almost completely performed and the value of the services
vastly exceeded the damages occasioned by the breach.*
1 See note in 31 Am. Rep. 103, where
the rule in many states is pointed out.
Ryan v. Dayton, 25 Conn. 188; Ind.,
B. & W. R. Co. v. Koons, 105 Ind.
.507, 511.
2 McMillan v. Malloy, 10 Neb. 228.
3 The full treatment of this ques-
tion falls under the head of “Elec-
tion of Remedies,” and the reader is
referred to that title. If, by the con-
tract of hiring, the service is to con-
tinue for a definite time, the wages
to be paid at stipulated periods, as
weekly or monthly, the servant has,
of course, an action on the contract
for wages due at the time of the
wrongful discharge. He cannot, how-
ever, after discharge, and during the
time for which the contract was to
run, bring successive suits for wages
at the end of the periods stipulated.
Jones v. Dunton, 7 Ill. App. 580. As
growing out of the wrongful dis-
charge after the term has com-
menced, he has two remedies: 1. He
may treat the contract as continuing
and recover damages for the breach,
in which case the measure of dam-
ages would be the amount of wages
due, less what he might have earned.
Larkins v. Hecksher, 51 N. J. L. 133;
3 L. R. A. 137; Stubbe v. Waldeck,
87 Wis. 437; Richardson v. Eagle
Mach. Works, 78 Ind. 422; 41 Am.
Rep. 584. 2. Or, if he does not sue
On the contract for wages due, as
above, he may rescind the contract
and sue on a quantum meruit for
services actually rendered. Howard
v. Daly, 61 N. Y. 362; Chamberlin v.
McAllister, 6 Dana, 352; Clark v.
, Manchester, 51 N. H. 594; Wilkinson
v. Black, 80 Ala. 329; Dover v. Plem-
mons, 33 N. C. 23. See “Master and
Servant,” “Constructive Service.”
4A very hard application of this
§ 604.] THINGS, '761
In 1834 the supreme court of New Hampshire introduced
the first innovation of this strict rule as applied to contracts
of service, and held that even though there was a voluntary
abandonment of the service, unjustifiable and against the wish
of the employer, there might nevertheless be a recovery upon
the quantum meruit for so much as the value of the services
exceeded the damages to the employer."
The decision is based upon the ground that there is no real
distinction between allowing a quantum meruit in such cases
and in a case where the contract is to furnish property and
material; that there was no distinction resting upon the reason-
ing that the party receiving material and labor was held to
accept and receive, unless he returned, and the idea that dur-
ing every day of the personal service the defendant was ac-
cepting and receiving beneficial service.
This rule has been adopted in many of the states,” but others
still adhere firmly to the old rule.”
SEC. 604. Apportionability of Contracts.--It is frequently
stated that a contract is divisible or apportionable when by
its terms, either express or implied, it is contemplated that, on
a performance of less than the whole, a portion of the con-
sideration on the other side shall be due and demandable; *
but it seems well settled by the highest authority that an en-
tire contract to furnish a gross amount delivered in instal-
ments is entire, even though payment is to be made as the
instalments are delivered,” and it is not essential to entirety that
every act of performance should be simultaneous or continu-
rule is shown where the plaintiff
worked ten and one-half months out
of a yearly contract, and on Satur-
day, in anger, refused to continue
longer and left, returning Monday,
offering to resume, but his employer
refused to receive him back. He
was allowed to recover nothing.
Lautry v. Park, 8 Cow. 63.
1 Britton v. Turner, supra.
2See Clough v. Clough, 26 N. H. 24;
McMillan v. Malloy, 10 Neb. 328; 3
L. R. A. 471; Duncan v. Baker, 21
Fan. 99.
3 Kohn v. Faudel, 29 Minn. 470;
Rettle v. Harvey, 21 Vt. 301; Byrd
v. Boyd, 4 McCord, 240; 17 Am. Dec.
740; Timberlake v. Turner (Miss.), 24
L. R. A. 231, and cases cited in note.
4.White v. ' Atkin, 8 Cush. 370;
Keeler v. Clifford, 165 Ill. 545; Woo-
ten v. Walters, 110 N. C. 251; Jack-
son v. Cleveland, 15 Wis. 107; Part-
ridge v. Forsythe, 29 Ala. 200.
5 Such is the doctrine of Mersey
Co. v. Naylor, approved in Norring-
ton v. Wright, infra.
7.62 TEIINGS. [$ 604.
ous. An illustration of this is found in a contract of sale to be
delivered in instalments."
An entire contract is never apportionable, but the considera-
tion of it may be. The recovery which is allowed upon aban-
donment or breach or rescission is distinguishable from a recov-
ery in accordance with the terms of an apportionable contract.
A contract to do an entire thing, furnish a specific quantity
of a commodity, or perform services for a definite period, is
entire;” but even where a portion of the consideration is to be
paid as the work progresses, the remedy only is apportionable,
though the contract may be entire,” and the party performing
has the right to demand and recover the instalments as they
accrue; and a recovery of one is not, like a recovery of a breach
of contract, a bar to a subsequent suit for another instalment of
the balance. But even in such cases the performance of the act
less than the whole may be a condition precedent, while on the
other hand payment for an instalment will not generally con-
stitute a condition justifying a rescission, unless so expressly
provided.”
The stipulations of a contract may be entire on One side and
apportionable on the other; e.g., a contract to sell and deliver
a specific quantity of a commodity to be delivered in instal-
ments, to be paid for on delivery, is without doubt an entire
contract to sell and deliver the gross amount; but the contract
to pay, while not a condition precedent, is apportionable, at least
so far as to allow a recovery of the instalments as delivered;"
1 Norrington v. Wright, 115 U. S. instalments, or that several distinct
203. obligations which it imposes shall be
2 Id. performed at different times at stipu-
3 Id. lated periods, or to different persons,
4 Mersey Co. v. Naylor, 9 App. Cas.
434, stated in 115 U. S. 210. Cf. Keeler
v. Clifford, 165 Ill. 544. The reason-
ing in this case is not very plain, but
the decision is correct.
5 “Whether a contract is entire or
not is to be determined by consider-
ing whether the obligation which it
imposes is to be discharged at differ-
ent times or to different persons. If
parties have stipulated in the same
COntract that a debt shall fall due in
the consideration for each separate
act being either expressly or im-
pliedly apportioned, they have
thereby made the contract divisible
in such a sense that an action may
be maintained on the contract to re-
cover upon each separate independ-
ent stipulation as it matures or is
broken.” Indiana, B. & W. R. R. Co.
v. Koons, 105 Ind. 507, 511.
6 Pope v. Porter, 102 N. Y. 366.
“They contemplate and require a
§ 605.] TEIIINGS. 763
and on the other hand, the delivery of the instalments as con-
tracted for may be a condition precedent, which, if not per-
formed, will permit the purchaser to rescind.
SEC. 605. The Subject-matter.—The treatment of the subject-
matter, whatever form it takes, consists in pointing out the
general rules in relation to objects for the accomplishment of
which no valid enforcible contract can be made."
In these cases it will be seen that all of the essentials of as-
sent and consideration on One side may be present, but the
subject-matter is such that to it the law will not attach the
obligation.
The subject-matter is not always, although sometimes, distin-
guishable from consideration, and subject-matter is but another
mode of expressing the object intended to be accomplished.”
Thus, in the case of mutual promises to pay money, the subject
of the contract is the payment of money, and in mutual prom-
ises to do and perform different things in consideration of the
performance by the other party of something else, the subject-
matter and the consideration are the same. In a given case,
however, the thing to be performed by one side may be legal,
while that agreed upon to be performed by the other side may
be illegal, and in such a case, the mutual agreements being the
consideration for each other, the consideration for one prom-
ise is illegal because the object to be accomplished by the other
party is illegal.
The fundamental rule is that all contracts which have for
their object anything repugnant to the general policy of the
law, or contrary to the provisions of a statute, are void; for it
performance in Separable parts or
divisions; and where the vendor de-
livers an agreed proportion, which
the vendee accepts, and payment
therefor becomes immediately due,
the right to recover is at once com-
plete and is not forfeited by a later
default. The contract in such cases
is called divisible or distributive, and
the language is not objectionable if
correctly understood and applied.”
Pope v. Porter, 102 N. Y. 362–71.
1 Broom's Max. (8th ed.) 732. It is
a fundamental rule of public policy
that the freedom of contracting shall
not be lightly interfered with. Print-
ing Co. v. Sampson, 19 Eq. 462. See
ante, Sec. 398.
*In the draft of the civil code pre-
pared for New York by David Dud-
ley Field and others, what is called
the subject-matter is treated as the
object. So the same thing is spoken
of in different connections and by
different persons indiscriminately, as
consideration, subject-matter, and
object. Parsons treats the subject of
illegality under the title “Considera-
tion.”
‘764. THINGS, [$ 605.
is a rule as well in law as equity, ea turpi contractu actio non
oritur." -
It is also a rule that although the object of the contract be
legal, if it is based on an immoral or illegal consideration the
contract is void.”
On first view the above rules seem exceedingly simple. Giv-
ing to the words in which they are expressed a plain and lit-
eral interpretation would have the effect of declaring every
unlawful contract void ab initio, i. e., as though it never had
been. But such is the changing, uncertain sense in which the
words void and illegal are used that it cannot be affirmed as
a rule of law that every contract prohibited by the statutes, or
repugnant to the policy of the law, is void.” sº
There is a wide distinction in legal contemplation between
contracts which are illegal and those which are void, and, para-
doxical as it may seem, contracts which are regarded in the
English law merely as void are not void, whereas contracts
which are regarded in the light of that law as illegal are void."
1 Thalimer v. Brinkerhoff, 20 Johns.
397.
2 Broom’s Max. (8th ed.) 732; Bank
of U. S. v. Owens, 2 Pet. 539; Byrd v.
Hughes, 84 Ill. 174.
* E. g., usurious and wagering con-
tracts.
4 For example, by the 8th and 9th
Vict., ch. 109, sec. 18, it is provided:
“All contracts and agreements,
whether by parol or in writing, by
way of gaming or wagering, shall be
null and void; and no suit shall be
brought or maintained in any court
of law or equity for recovering any
sum of money or valuable thing al-
leged to be won upon any wager, or
which shall have been deposited in
the hands of any person to abide the
event on which any wager shall have
been made.” Counsel in argument,
in Lilley v. Rankin, Q. B. Div. 1886,
19 Chi. Leg. News, 202, a case on a
contract said to be in violation of this
statute, said: “This contract is void
only, and not illegal; and though I
admit that a bill or note given for an
illegal consideration and indorsed
Over to one who has given valuable
consideration, with notice of its ille-
gality, could not be sued on, yet,
when the consideration is only void,
i. e., not tainted with illegality, an
indorsee for value, even with notice,
may recover it.” And Huddleston,
B., states in the opinion: “The stat-
ute of 9 Anne, ch. 14, avoided bills.
and notes given for certain purposes,
and by 5 and 6 Will. 4, ch. 41, sec. 15,
such notes were deemed to be not
merely void, but as given for an
illegal consideration. Now, if these
notes had come within the effect of
the 9 Anne, ch. 14, the statute of 5.
and 6 Will. 4, ch. 41, would have
made them illegal; but they do not,
and 8 and 9 Vict., ch. 109, Sec. 18,
need only be looked at, which enacts
that contracts by way of gaming or
wagering shall be void, and not re-
coverable by legal process. I will do
no more than mention the cases of
Fitch v. Jones, 24 L. J. Q. B. 293, and
Beeston v. Beeston, 33 L. T. Rep. (N.S.)
700; 1 Ex. Div. 13, which go to show
that notice of the voidness of the
§ 605.] THINGs. '765
Almost any case involving the invalidity of contracts because
of illegality presents an instance of the confusion resulting from
this inapt use of these terms illegal and void.
Z/legality should be used as a term indicating the quality or
Character of the contract.
Void should be used as indicating the effect of the presence
of the taint of illegality and given its common, natural sense.
Voidable should be used to designate another effect of a dif-
ferent degree of illegality.
Penalized contracts accurately designate a class of contracts
prohibited under penalty, but which, if performed, are attended
With no consequence except the penalty, though not enforce-
able while executory."
These three classes are recognized by our courts, but the
Words by which they are designated are seldom used with dis-
crimination. Void is generally used to indicate one species of
transgression, instead of the effect of transgression; illegality,
another, and no fixed designation is used for the third.
In this connection it is important to distinguish between
fraud and illegality. An illegal contract is one which, while
it is complete in essentials, the courts will refuse to enforce be-
cause it has for its object something which is impolitic or pro-
hibited. Fraud, on the other hand, goes to the inception of the
contract, and precludes the idea of assent.”
Divisibility of //legal Contracts.--It is the rule of the modern
authorities that where, on a lawful consideration, a party has
contracted to perform anything, and an illegal act is included
therein, he must perform so far as the effect is legal if it can
be separated from the illegal part.
Where, however, no separation can be made between the
legal and illegal stipulations, the whole will be held void.”
This supposes legality of consideration. If one of two con-
siderations is void, the other will support the promise; if illegal,
the whole contract is void.*
consideration is no defense to an ac- 32 ECent, Com. 467; Hynds v. Hays,
tion on a bill or note, if it be proved 25 Ind. 31; Warren v. Chapman, 105
that the holder gave valuable con- Mass. 87; Saratoga Co. Bank v. King,
sideration for the instrument, which 44 N. Y. 87; Whitbeck v. Estate of
is the present case.” Ramsey, 74 Ill. App. 524.
! See Aiken v. Blaisdell, 41 Vt. 655. * Metc., Cont. 246; Henderson v.
* Anson on Contracts, *182. Palmer, 71 Ill. 583; Root v. Merriam,
766 TEIIINGS. [$ 605.
A partial want or failure of a consideration avoids a note
pro tanto, but illegality in respect to a part of the considera-
tion avoids it ºn toto." -
The principle does not, however, apply to subsequent con-
tracts growing out of, but not bottomed on, the illegal transac-
tion, in which the plaintiff does not require the aid of the illegal
transaction to establish his case.” -
Illegal contracts are those which are prohibited either (1) by
statute or (2) by the rules of the common law. -
Illegal by Statute.—The statute may declare expressly that
a contract having for its object certain things shall be void or
illegal, or both. And a contract which is void as being in con-
travention of a statute does not become valid by the repeal of
the statute.”
Again, the statute may simply impose a penalty upon the
accomplishment of certain objects. The question then arises,
Does this amount to a prohibition? And this depends upon
the interpretation and construction of the particular statute,
and can be answered satisfactorily by ascertaining as nearly
as possible the intention of the legislature.”
Where the penalty is incurred by every breach of the pro-
visions of the statute, there can be no doubt of the intention
to make the contract void. If, however, the prohibition of the
statute is against carrying On a business except on certain
specified conditions, and a penalty is imposed once for all, a
contract violating such provisions will not be void.”
Where the penalty is imposed, not for the protection of the
whole public, but for the security of the revenue, probably it
will be held, in most cases, that it was intended not to pro-
hibit the contract, but only to penalize it.”
The courts are reluctant to sustain a contract where the effect
would be to encourage the violation of the revenue laws."
27 Fed. Rep. 909; Barnard v. Back- 4 Larned v. Andrews, 106 MaSS. 435;
haus, 52 Wis. 593; Armstrong v. Aiken v. Blaisdell, 41 Vt. 668.
Toler, 11 Wheat. 258; Embry v. Jen- 5 Smith v. Mawhood, 14 M. & W.
nison, 131 U. S. 348. 463.
1 Widoe v. Webb, 20 Ohio St. 431. 6 Brown v. Duncan, 10 B. & C. 93;
2 Armstrong v. Toler, 11 Wheat. Anson on Contracts, *173; Larned v.
258; Brooks v. Martin, 2 Wall. 70. Andrews, 106 Mass. 435; Aiken v.
8 Webber v. Howe, 36 Mich. 150. Blaisdell, 41 Vt. 655, 668.
* 7 Greenhood, Pub. Pol. 582,
§ 605.] THINGs. 767
Statutes prohibiting or penalizing contracts have been classi-
fied into those relating (1) to the security of the revenue; (2) to
the protection of the public in dealing with certain articles
of commerce, (3) or in dealing with certain classes of trade;
(4) to the regulation of the conduct of certain kinds of busi-
ness." -
The statute of frauds has been considered at length. By it
certain contracts are declared to be void and unenforceable.”
Where there is an entire express contract, void under this stat-
ºute, no implied promise can be raised.” -
Contracts Prohibited by the Jºules of the Common Law.—A.
contract made with an alien enemy is void, not on any ground
of public policy, but because by the common law trading with
an enemy without a license from the king was illegal.”
An agreement to commit an indictable offense falls within
the prohibition of the common law. And so with regard to
agreements to commit civil wrongs. An example will be found
in an agreement involving the publication of a libel.”
Contracts Against Public Policy.—It is sometimes attempted
to distinguish agreements made in violation of the policy of
the law from those treated under the previous heading. But
such a distinction is without value, because rules have grown
up on this subject which are in reality rules of the common
law as much as those considered in the last paragraph.
The phrase “public policy,” or the policy of the law, is one
of uncertain meaning. Public policy is changeable, and varies
with the habits, education and condition of the people.
It has been different at different stages in the development
of the law, and must change with the circumstances and en-
vironments of the people, and with the growth of a public sen-
timent in conformity with high ideals." -
1 Anson on Contracts, 226; Pollock Ch. Div. 364. “Public policy in the
on Contracts, p. 682. administration of the law by the
2See ante, p. 738. courts is essentially different from
3 Galvin v. Prentice, 45 N. Y. 162; 6 what may be public policy in the
Am. Rep. 58; White v. Buss, 3 Cush. view of the legislature. With the
448. legislature it may be, and often is,
4 Potts v. Bell, 8 T. R. 548; Hanger nothing more than expediency. The
v. Abbott, 6 Wall. 532. public policy which dictates the en-
5 Clay v. Yates, 1 H. & N. 73. actment of the law is determined by
6 See Davies v. Davies, 1 L. R. 36 the wisdom or unwisdom of the leg-
-- 768 THINGs. [$ 605.
A contract contrary to the policy of the state where it is
made or to be enforced is not generally enforceable anywhere.”
But a contract valid where made will not be enforced in a
state where it is deemed contrary to good morals.”
The contract is not void, however, as against public policy
unless it contravenes some established interest of society.”
Bargains Abrogating Parental Duty—The contract of a par-
ent by which he bargains away for a consideration the custody
of his child to a stranger, attempting to shift from himself to
another the paternal obligation, amounts to a mere sale of the
child and is void as against public policy. But a contract
which amounts to a family compact, by which a relative under-
takes, in return for the custody of the child and the charge of
his education, to pay a specified sum to the parent, and a speci-
fied sum to the child on his coming of age, and where parental
affection is not to be extinguished and the welfare of the child
is to be promoted, is not against public morals or the policy of
the law.”
AMaintenance is an officious intermeddling in a suit in which
one has no interest by maintaining or assisting either party
with money or otherwise to prosecute or defend it.
Champerty is a species of maintenance, being a bargain with.
a plaintiff or defendant to divide the land or other matter sued
for between them if they prevail at law.”
These were offenses at common law punishable by fine and
imprisonment,” and are still regarded in England as contrary
to public policy as tending to stir up strife and to increase liti-
gation. It was said in a recent case that maintenance would
exist if the conduct of the party tended to promote litigation."
The rules relating to champerty and maintenance have not
8Story on Contracts, sec. 546; Peter-
son v. Christensen, 26 Minn. 377.
islature. If the legislature declared
by statute that it was injurious to
public interests, under any circum-
stances, for a parent to surrender the
custody of a child during minority
to a grandfather, that would be the
end of discussion on that question.”
Enders v. Enders, 164 Pa. St. 266.
1 Teal v. Walker, 111 U. S. 242; Tol-
man v. Reed, 72 N. W. Rep. 1104.
* Oscanyan v. Arms Co., 103 U. S.
261, 277.
4 Enders v. Enders, 164 Pa. St. 266,
27 L. R. A. 56, and note citing many
Ca,SéS.
54 Blk. Com. 134.
6 Thalimer v. Brinkerhoff, 20 Johns.
386.
7 Bradlaugh v. Newdegate, 11 Q. B.
10.
§ 605.] THINGS. 769
been adopted in some states, it being held in such that here the
condition of society which furnished a good reason for these
rules does not exist. Many of the states, however, have statu-
tory provisions on the subject, and in some jurisdictions it is
held that a purely champertous agreement is void as against
public policy whether prohibited by statute or not." In most
of the states the English doctrine is recognized, but with more
or less modification.”
But a stranger to a contract cannot object that it is cham-
pertous. The defense can be set up only when the agreement
is sought to be enforced or title is to be made through it.”
A person may assign an interest in a chose in action even
though it happens to be the subject of litigation.*
A marriage brokage contract, or agreement to pay for the
bringing about of a marriage, is void as interfering with the
freedom of consent, which it is the policy of the law to encour-
age.”
So an agreement in restraint of marriage is against public
policy, as tending to prevent the increase of population, and as
being injurious to the moral welfare of the citizen."
Agreements providing for immediate separation of husband
and wife are valid. But an agreement looking to a separation in
the future is void, as it is supposed to discourage the perform-
ance of “duties in the fulfillment of which society has an in-
terest.” An agreement not to defend a divorce suit, in con-
sideration of a sum to be paid in lieu of alimony, is void.”
Contracts of Public Officers.--It is a maxim of the law that
no one shall act where his interest and integrity are in conflict,
and the principle involved in this maxim pervades every depart-
ment of private intercourse and public service.” It follows that
wherever one is placed in an official position it is contrary to
1Johnson v. Van Wyck, 4 App. Morrison v. Rodgers, 115 Cal. 952;
(D. C.) 294. See Stanley v. Jones, 7
Bing. 369; Peck v. Henrich, 167 U. S.
639; Johnson v. Hilton, 96 Ga. 577.
* Ross v. Ft. Wayne, 64 Fed. Rep.
1006.
3Davis v. Settle (W.Va.), 26 S. E.
Rep. 557; Barnes v. Scott, 117 U. S.
582. *: -
4 Rucker v. Bolles, 80 Fed. Rep. 504.
Johnson v. Hunt, 81 Ky. 321.
6 Lowe v. Peers, 4 Burr. 2225; Mari-
delbaum v. McDonald, 29 Mich. 78.
7 Cartwright v. Cartwright, 3 D. M.
& G. 982; Randall v. Randall, 37
Mich. 571.
8 Smutzer v. Stimson, 9 Colo. App.
326; Hamilton v. Hamilton, 89 Ill. 348.
9 Woodstock Co. v. Richmond Co.,
129 U. S. 643.
770 THINGS. [$ 605.
the policy of the law for him to be interested in a contract
with the principal to make a profit to himself, and so the com-
mon law forbids contracts between public corporations and
officers of the same; and although there are many statutory
provisions covering this subject, generally speaking such stat-
utes are merely declaratory of the common law."
The rule is uniform, and its operation subject to no exception
that the public is entitled to the best judgment of every officer,
and it is the policy of the law that no private pecuniary inter-
est shall mould or modify his views. The validity of the contract
does not depend upon good faith or right intentions.” Such con-
tracts are, to say the least, voidable under all circumstances.”
I Borough of Milford v. Milford
Water Co., 124 Pa. St. 610; Smith v.
Albany, 61 N. Y. 144; Bellaire Goblet
Co. v. City of Finley, 5 Ohio Cir.
Ct. Rep. 418; Pickett v. School Dis-
trict, 25 Wis. 552. In People v. Town
Board, 11 Mich. 222, it is said: “Pub-
lic officers are agents and their offi-
cial powers are fiduciary. They are
trusted with public functions for the
good of the public, to protect, advance
and promote its interests and not
their own.”
2 Greenhood, Pub. Pol. 5. In Piatt,
v. Longworth, 27 Ohio St. 195, which
involved a sale made by an adminis-
trator to a relative, the administrator
having some secret interest, John-
son, J., says: “In such cases the court
will not suffer itself to be drawn
aside from the application of this
equitable rule by any attempt on the
part of the purchaser to establish the
fairness of the purchase, because of
the danger of an imposition and the
presumption of fraud, inaccessible to
the eye of the court. The policy of
the rule is to shut the door against
temptation in cases where this rela-
tionship exists; it is of itself deemed
sufficient to create the disqualifica-
tion. The sale will be set aside, not
because there is fraud, but because
there may be fraud.” This principle
is well stated by Elliott, J., in Elk-
hart Co. Lodge v. Curry, 98 Ind. 208:
“A wholesome rule of law is that par-
ties should not be permitted to make
contracts which are likely to set pri-
vate interests in opposition to public
duty or to the public welfare. 2.
It is not necessary that actual fraud
should be shown, for a contract which
tends to the injury of the public serv-
ice is void, although the parties enter
into it honestly.”
3 Stewart v. Railroad Co., 38.N. J.
L. 505.
Mayor of City.—The fact that the
mayor of a city is also the president
and a stockholder of a gas company
is held in Capital Gas Co. v. Young
(Cal.), 29 L. R. A. 463, not to defeat
the right of the gas company to col-
lect for gas furnished, not under any
contract, but by requirement of law,
although the statutes make it unlaw-
ful for any city officer to be inter-
ested in any contract or business for
which payment is to be made from
the city treasury. A member of a
city council claimed to have con-
tracted with a railway company to
enter its employ and devote substan-
tially all his time in the general
management of said company’s busi-
ness within his city in the procure-
ment of rights of way through such
City, a necessary and Substantial part
of which comprised cession of rights
§ 605.] THINGS. 77ſ.
A contract by a public officer to perform future services for
a third person for less than the official fees or salary is void in
toto and cannot be enforced; neither will the existence of such
a contract defeat an action for the legal fees for or services
performed for a private person." Nor is it competent for a pub-
lic officer to assign his unearned salary.” The public service
cannot be endangered by allowing its officers to become em-
barrassed or incapacitated from performing their duty and
upholding the dignity of the office by such improvident bar-
gains.” -
Agreements Having a Tendency to Injure the Public Service.—
The law proceeds on the theory that servants are chosen for
their fitness, and the public has a right to their personal serv-
ices. So a sale of a public office is recognized both in England
and in this country as being contrary to the rules of the com-
mon law.”
Agreements which, in their necessary operation upon the
action of parties, tend to restrain natural rivalry and compe-
tition, to the disadvantage of the public, are void.” And an
understanding between contractors engaged in work for the
public, by which the government is to be charged excessively
for work done, is contrary to public policy.” -
Dobbying Contracts.-Public policy emphatically condemns
every effort to influence legislative action by underhanded
methods for private profit. It is not necessary to show that
actual corruption was resorted to, or that it was contemplated.
Over its streets and avenues, and
thereafter during the term of office
assisted, as such councilman, in
granting and ceding valuable rights
and interests from such city to such
railway company. Such rights were
held so connected with the subject-
matter of said employment as to have
a tendency to influence the action of
such member of council; that such
contract contravenes public policy
and will not be enforced. C., H. &.
D. Ry. Co. v. Morris, 10 Ohio C. C.
502; McCortle v. Balls, 29 Ohio St.
419; Fuller v. Duane, 18 Pick. 472.
1 A notary public is such an officer
and within the rule. John’s Am.
Notaries, sec. 19; Ohio Nat. Bank v.
Hopkins, 8 Ct. App. (D. C.) 146.
2 Bangs v. Dunn, 66 Cal. 72; Schloss
v. Hewlet, 81 Ala. 266; Bliss v. Law-
rence, 58 N. Y. 442.
& Ohio Nat. Bank.v. Hopkins, supra,
citing Liverpool v. Wright, 28 L. J.
(N. S.) Ch. 811; Palmer v. Vaughn, 3
Swanst. 173; Parsons v. Thompson,
1 H. Blk. 322; Foster v. Wells, 8 M.
& W. 147; Anson on Contracts, *184.
4 Hall v. Gavitt, 18 Ind. 390; Morse
v. Ryan, 28 Wis. 356.
5 Hoffman v. McMullen, 83 Fed.
Rep. 372.
6 Fisher Elec. Co. v. Botte Iron
Works (Mich.), 74 N. W. Rep. 493.
772 THINGS. - [$ 605.
Contracts by which one agrees to act for another in such a
matter and manner may be valid." Persons whose interest may
in any way be affected by an act of the legislature are entitled
to be heard either in person or by counsel; but persons acting
in a representative capacity must appear in their true character.
“A hired advocate or agent assuming to act in a different
character is practicing deceit.”* All indirect methods of in-
fluencing public officials in respect to public business intrusted
to them are immoral. The same considerations apply with full
force to all agreements looking to the procurement of contracts
from heads of departments, national, state or municipal. If the
agency is open and understood by all parties, it is lawful; but
if the solicitation is meant to be understood as disinterested,
or if the contract contemplates that action shall be secured
by any other than honest, open and public means, the courts
will not enforce the contract.”
Perversion or Obstruction of the Course of Justice.—There
can be no valid agreement to stifle a prosecution for a crime.
The knowledge that a crime has been committed cannot be
converted into a source of profit." In Keir v. Zeeman, Chief
Justice Tindal said: “We have no doubt that in all offenses
which involve damages to an injured party, for which he may
maintain an action, it is competent for him, notwithstanding
they are also of a public nature, to compromise or settle his
private damage in any way he may think fit.” Some old Eng-
lish cases made a distinction between compounding felonies
and compounding misdemeanors. But this distinction does
not seem to be continued in the English law, and it is discounte-
nanced with us. In this country any act which is made pun-
ishable by law is an Offense against the public, and cannot be
made the subject of private compromise unless expressly au-
thorized by statute."
1 Marshall v. Railroad Co., 16 How, 220; Schultz v. Culbertson, 46 Wis.
314, 334; Trist v. Child, 21 Wall. 441; 313; Ricketts v. Harvey, 106 Ind. 564.
Hayward v. Nordberg Mfg. Co., 85 59 Q. B. 371.
Fed. Rep. 4, 11. 6 Jones v. Rice, 18 Pick. 440; Part-
* Hayward v. Nordberg Mfg. Co., ridge v. Hood, 120 Mass. 403; Shaw
Supra. v. Spooner, 9 N. H. 197; Malli v. Wil-
3 Id. lett, 57 Iowa, 705,
*Williams v. Bayley, L. R. 1 H. L.
§ 605.] THINGS. 773
Any agreement tending to hamper or control the administra-
tion of justice is void." The validity of such a contract depends
on its tendency. Though a particular contract be free from
any taint, yet, if in its nature it is such as might have been in-
jurious to the public, it is void. And this is so whether law-
ful or unlawful means are contemplated to execute it.”
A contract ousting the jurisdiction of the courts over matters
arising under it is void. A covenant or stipulation contained
in or concurrent with an executory contract and collateral
thereto, providing that all matters of dispute which may subse-
quently arise in reference to it shall be referred to an arbitra-
tor or umpire, whose decision shall be binding, is void.”
Such umpirage may be made a condition precedent to bring-
ing suit, and the agreement may provide for the ascertainment
of the damages claimed to have accrued.* - -
An original agreement to perform work of a certain grade
or in a specified manner, or furnish materials of a certain qual-
ity, may provide that the decision of a superintendent, architect
or umpire shall be final and conclusive.
In the absence of
fraud or mistake his decision is binding.”
Arbitration.—A contract to arbitrate matters already actu-
ally in dispute is legal.”
Agreements Against Good Morals.--It is the policy of the
law to encourage morality. Courts will not lend their aid to
enforce contracts contra bonos mores."
A promise made in consideration of future illicit cohabita-
tion is void.
A promise made in consideration of past illicit cohabitation
1 Crowder v. Reed, 80 Ind. 1.
2 Greenhood, Pub. Pol. 5; Wood-
stock Iron Co. v. Richmond, etc. Co.,
329 U. S. 643; Ridenbaugh v. Young
(Mo.), 46 S. W. Rep. 959. .
8 Miles v. Schmidt, 168 Mass. 339.
In Stephenson v. Insurance Co., 54
Me. 55, the court said: “The law, and
not the contract, prescribes the rem-
•edy; and parties have no more right
to enter into stipulations against a
resort to the court, for a remedy in a
given case, than they have to provide
a remedy prohibited by law. Such
stipulations are repugnant to the rest
of the contract, and assume to divest
courts of their established jurisdic-
tions.”
4 Mitchell v. Dougherty, 90 Fed.
Rep. 639; Avery v. Scott, 8 Exch. 497;
Insurance Co. v. Morse, 20 Wall. 451; ,
D. & H. Canal Co. v. Pa. Coal Co., 50
N. Y. 250. -
5 Faunce v. Burke, 16 Pa. St. 469;
55 Am. Dec. 519; Guthat v. Gow, 95
Mich. 527; Wendt v. Vogel, 87 Wis.
462.
6 Davis v. Havard, 15 S. & R. 165;
16 Am. Dec. 557. See ARBITRATION
AND AWARD.
7 Drennan v. Douglas, 102 Ill. 341.
774 THINGS, [$606.
is a mere gratuitous promise, binding if made under seal, other-
wise not. - - * .
A parol promise to compensate for the injury sustained by
seduction is valid. In such a case it is in accordance with the
policy of the law that the wrong-doer should compensate for
the wrong." --
Where a house is rented for purposes of prostitution and the
owner knows at the time the purpose to which it is to be put,
he can maintain no action for the rent.” But the price of
clothes, food, and furniture, necessaries of life, sold for the use.
of the keeper of a bawdy-house may be recovered.”
SEC. 606. Contracts in Restraint of Trade.”—It is the right.
of every citizen to engage upon an equality in every lawful
vocation, and it is a settled view that the public has the right.
to require that no one shall incapacitate himself; also that the
course of trade should be kept free from unreasonable obstruc-
tion. Hence an individual may have a right to question the
action of the general public through its officers which tend to
inequality in this respect, and it is the duty of public officers.
to preserve manufactures, trade and commerce from unreason-
able obstruction and restriction.” Notwithstanding the freedom
of individuals to contract, or the power of the general public
to regulate trade and commerce, private contracts or public
measures which have the tendency and effect of unreasonably
restraining competition and trade are against the policy of the
law.” -
* Anson, Contracts (2d Am, ed.),
246.
2 Pearce v. Brooks, L. R. 1 Exch. 213.
3 Sprague v. Rooney, 82 Mo. 493;
52 Am. Rep. 383; Armfield v. Tate,
29 N. C. 258.
4 See Cook's Trade and Labor Com-
binations, Part II.
5.In Chappel v. Brockway, 21 Wend.
157, Judge Brockway said: “The
common law will not permit indi-
viduals to oblige themselves by con-
tract where the thing to be done or
omitted is injurious to the public.
Contracts in restraint of trade are,
for the most part, contrary to sound
policy, and are consequently held
void. This is the general rule. The
presumption is against all contracts.
in restraint of trade, and conse-
quently it lies upon him who seeks:
to enforce such an obligation to show
that it is free from objection. Con-
tracts . . . that a man will not.
pursue his occupation or Carry on
business anywhere in the state are:
void, upon whatever consideration
they may be made. They must be
injurious to the public, and no good
reason can be shown why one indi-
vidual should thus fetter himself, or
another individual should contract
for the restraint.”
6The granting of monopolies was
prohibited by Magna Carta. 2 Inst. 63.
§ 606.] THINGS,
775.
The rule of law is that an agreement in general restraint of
trade is illegal and void;' but an agreement which operates in
partial restraint may be good, provided it be not unreason-
able, and there be a good consideration to support it.”
While the law favors competition” it recognizes that there
may be a ruinous competition, injurious alike to the public and
the parties, and so a contract restraining this competition within
reasonable bounds, or, as it is called, in partial restraint of trade,
may be a positive benefit to the public at large, in which case
it is deemed reasonable and sanctioned.”
The law recognizes that the good will of a business may be
transferred with a sale of the business, the seller agreeing for
a reasonable period, and within a reasonable orbit, not to enter
into competition with the vendee.” -
So likewise, but with greater limitations and to a less extent,
1 Long v. Toul, 42 Mo. 545. Con-
tracts in unlawful restraint of trade
at common law were not unlawful
as being criminal, or as giving rise
to a suit for damages in favor of One
prejudicially affected, but were sim-
ply void and unenforceable. United
States v. Addyston Pipe, etc. Co., 85
Fed. Rep. 271; Mogul Steamship Co.
v. McGregor (1892), App. Cas, 25; Hil-
ton v. Eckersley, 6 El. & Bl. 47, 66.
2 United States v. Knight Co., 156
TJ. S. 1; Oregon S. N. Co. v. Winsor,
20 Wall. 64, . In Lang v. Werk, 2
Ohio St. 520, Judge Ranney, a learned
jurist, gave the following rules:
“(1) All contracts in general restraint
of trade are opposed to public policy
and void; (2) all agreements in partial
restraint of trade are illegal, except
when founded upon a valuable con-
sideration, and when good and suffi-
cient reasons appear for entering into
such contract. But before such a
contract can be enforced it must ap-
pear from the pleadings and the
proofs (1) that the restraint is par-
tial; (2) founded upon a valuable con-
sideration; (3) that the contract is
reasonable and not oppressive; (4) a
declaration which does not contain
the necessary covenants to show the
Contract reasonable, so as to rebut
the presumption of law against its.
validity, is bad on general demurrer.”
See United States v. Addyston Pipe,
etc. Co., 85 Fed. Rep. 271.
The inhibition against restraint of
trade seems at first to have had no.
exception, but it early became ap-
parent that in the interest of trade.
itself certain covenants in restraint
thereof should be enforced. In some
states, however, the restriction is.
made general by statutory provision
that any contract “to limit, control,
or in any manner restrict or regu-
late the amount of production or the
quantity of any article to be raised.
or produced by mining, manufacture,
agriculture, or any other branch of
business or labor,” or to control the
market price thereof, or to prevent
free competition in the production
or sale of such an article, shall be:
void. Bingham v. Brands (Mich.), 77
N. W. Rep. 940.
3 People v. Chicago Gas Trust Co.,
130 Ill. 268.
4 Mallan v. May, 11 M. & W. 652.
5 Peltz v. Eichele, 62 Mo. 171; Dean.
v. Emerson, 102 Mass. 480. . . .
776 THINGs. [š 606.
the law recognizes the right of a professional man to bind him-
self for a limited period of time and within a limited distance,
not to enter into direct competition with another of whom he
has accepted a consideration for the promise."
But there is a distinction between such contracts in reference
to manufactures, trade and merchandising and contracts affect-
ing professions, for in the former the restraint may be per-
petual, in the latter it must be limited as to both time and space.
A contract of the former class may be perpetual, but must
be restricted within a reasonable limit as to orbit, otherwise the
public would be deprived of the benefit to be derived from the
energy and exertion of the parties. -
Contracts in partial restraint of trade are upheld not because
they are advantageous to the individual with whom the con-
tract is made, and a sacrifice pro tanto of the rights of the com-
munity, but because it is for the benefit of the public at large
that they shall be enforced.”
The more important reasons are that such contracts injure the
parties making them by diminishing their means of supporting
themselves and families; they tend to deprive the public of the
services of men in the employments and capacities in which
they may be most useful to the community as well as to them-
selves; they discourage industry and enterprise, prevent com-
petition and enhance prices; and they expose the public to all
the evils of monopoly.
The agreements which, under the rules of the common law,
would be held valid, though in partial restraint of trade, have
been classified by Judge Taft in a late case as agreements:
1st, by the seller of property or business not to compete with
the buyer in such a way as to derogate from the value of the
property or business sold; 2d, by a retiring partner not to com-
pete with the firm; 3d, by a partner, pending partnership, not
to do anything to interfere, by competition or otherwise, with
the business of the firm; 4th, by the buyer of property not to
use the same in competition with the business retained by the
seller; 5th, by an assistant servant or agent not to compete
1 Horner v. Graves, 7 Bing. 735; 2 Mitchell v. Reynolds, 1 P. Wms.
Rakestraw v. Lanier (Ga.), 30 S.E.Rep. 181; Alger v. Thacher, 19 Pick, 51.
735. - g -
§ 606.] THINGS. 777
with his master or employer after the expiration of his time of
service." •
No covenant in restraint of trade can be enforced unless it
is merely ancillary to the main purpose of a lawful contract
and necessary to protect the covenantee in the enjoyment of
the legitimate fruits of the contract, or to protect him from the
dangers of an unjust use of those fruits by the other party. In
deciding upon the reasonableness of such a restraint it is to be
considered, 1st, whether it affords a fair protection to the inter-
ests of the party in favor of whom it is given; and 2d, whether
it interferes with the interests of the public.”
To support a promise in restraint of trade, even though it be
under seal, a consideration must be shown.”
It was formerly thought that the restraint might be unlim-
ited as to time, but that it must be limited as to space. This
doctrine has, however, received very material modification. The
restraint may extend far enough to afford a fair protection to
the purchaser, and what is such protection must depend on
the nature of the business, and must be determined by the court
in view of the circumstances in each case.*
Where there is no limitation on the restraint as to territory,
the contract is void.”
Monopolies.—The definition of monopolies given by the early
English cases and text-writers as meaning an exclusive right
or privilege granted to an individual by the sovereign or par-
liament obviously throws no light upon the nature of a monop-
oly created by the agreement, combination or contract between
1 It is for the party to prove and
the court to determine that the re-
straint is reasonable. United States
w. Addyston Pipe Co., Supra (ante,
p. 775, note 2). .
2 Tindall, C. J., in Horner v. Graves,
7 Bing. 735, cited in Bingham v.
Brands (Mich.), 77 N. W. Rep. 940;
TJnited States v. Addyston Pipe, etc.
Co., supra. See also Martin v. Murphy,
129 Ind. 464; Sternberg v. O'Brien, 48
N. J. Eq. 370.
3Mallan v. May, 11 M. & W. 665;
Keeler v. Taylor, 53 Pa. St. 467.
* Rousillon v. Rousillon, 14 Ch. Div.
858; Oregon St. Nav. Co. v. Winsor,
20 Wall. 67; Beal v. Chase, 31 Mich.
490; Diamond Match Co. v. Roeber,
35 Hun, 426; Harrison v. Nute, 87 Ill.
215. In Oregon St. Nav. Co. v. Win-
SOr, Supra, a contract was upheld
by which one of the parties cove-
nanted not to run a steamer on any
of the waters of the state of Califor-
nia. In Beal. v. Chase, Supra, a con-
tract not to carry On a publishing
business within the state of Michigan
was upheld.
5 Wiley v. Baumgardner, 97 Ind. 66;
Deane v. Emerson, 102 Mass. 480;
Furtz v. Gokey, 68 N. Y. 300.
778 THINGS. [$606.
private persons, but applies only when the limitation upon the
powers of congress or legislatures to grant such exclusive fran-
chises or privileges is in question." -
Contracts which are prohibited as against public policy be-
cause of their tendency to create a monopoly are those contracts.
and combinations which pass at the present time under the de-
nomination of trusts, having for their intention and effect the
destroying of competition by cornering the market, or even by
lowering the price of articles temporarily to such a degree as
to ruin competitors not within the combination.”
It does not signify whether, as a matter of fact, competition
is destroyed or not. As was said by Mr. Chief Justice Fuller
in United States v. Knight,” it is not essential in order to vitiate
a contract or combination that its results should be a complete
monopoly. It is sufficient if it really tends to that end and to
deprive the public of the advantages which flow from free
competition.*
olized is not material.
essaries of life.”
1 Slaughter House Cases, 16 Wall.
36. There is a monopoly when one
single person buys up the whole of a
commodity, fixing on it a price at his
pleasure. 11 Co. 86b.
2 An agreement providing for a
combination of all interests engaged
in a particular business under abso-
lute dominion of a number of trust-
ees is illegal and void. Bishop v.
American Preservers’ Co., 157 Ill. 284.
The following cases sustain the prop-
Osition of the text and furnish excel-
lent illustrations of the rule: People
v. Sheldon, 139 N. Y. 251; Morris Run
Coal Co. v. Barclay Coal Co., 68 Pa.
St. 173; Nestor v. Brewing Co., 161
Pa. St. 473; Salt Co. v. Guthrie, 35
Ohio St. 666; Chapin v. Brown, 83
Iowa, 156; Anderson v. Jett, 89 Ky.
375; Moore v. Bennett, 140 Ill. 69;
Vulcan Powder Co. v. Hercules Pow-
der Co., 96 Cal. 510; Urmston v. White-
legg, 63 L. T. (N. S.) 455; Jackson v.
Akron, etc. Co., 51 Ohio St. 303.
3 156 U. S. 1.
The character of the trade sought to be monop-
If it is lawful it need not be of the nec-
4 This is well illustrated by the case
of Adams v. Brennan (Ill.), 52 N. E.
Rep. 614, where the court held that a
contract let by the Chicago board of
education with the condition that
“none but union labor should be em-
ployed,” on account of which the city
was obliged to pay a higher price for
the work, was illegal. See Holden v.
Alton (Ill.), 53 N. E. Rep. 556.
5 People v. Duke, 44 N. Y. S. 336.
Taft, J., in United States v. Addyston
Pipe, etc. Co., 85 Fed. Rep. 286, refer-
ring to Roller Co. v. Cushman, 143
Mass. 353, and Gloucester, etc. Co. v.
Russia, etc. Co., 154 Mass. 92, in which
it was held that the rule was re-
stricted to articles of prime or pub-
lic necessity, said “that the common-
law rule against restraint of trade
extends to all articles of merchan-
dise, and the introduction of such a
distinction only furnishes another
opportunity for courts to give effect
to the varying economical opinions
of its individual members.”
$ 606.] THINGS. 779
It is not to be understood that all monopolies are unlawful,
for it is the spirit and effect of the patent and copyright laws
to insure to the party, and his assigns and legal representa-
tives, the exclusive monopoly in the particular article patented
or copyrighted; but these are limited in time and amount only
to a protection of what he has produced.
Position of Federal Courts.-The rules of the law on these
questions are nowhere more fully recognized than in the fed-
eral courts, as is clearly manifest from the cases cited in the
notes."
The power of the national government, however, extends
only to such agreements injuriously affecting interstate com-
merce, and as to this congress has, in the exercise of its consti-
tutional powers, legislated, and the federal courts have enforced
the provisions of the law.”
Misapprehension has arisen in certain quarters with regard
to the scope of the act of congress of July 2, 1890, known as
the Anti-trust Law, and the decisions of the supreme court of
the United States in cases arising under it. -
This act applies to all contracts or combinations or conspira-
cies the effect of which is in restraint of trade or commerce
among the states or with foreign nations, whether reasonable
or unreasonable.”
1 Robbins v. Taxing District, 120
U. S. 489; United States v. Knight
Co., supra; United States v. Trans-
Missouri Freight Ass'n, 166 U. S. 290;
TJnited States v. Addyston Pipe, etc.
Co., Supra.
*Id.; ante, sec. 306 et seq.
3 United States v. Trans-Missouri
Freight Ass'n, 166 U. S. 290. In this
case the act was held to apply to rail-
road companies which had combined
in establishing traffic rates for the
transportation of persons and prop-
erty. By this act congress did not
attempt to assert the power to deal
with monopoly directly as such, or
to limit and restrict the rights of cor-
porations created by the states or
Citizens of the states in the acquisi-
tion, control or disposition of prop-
erty, Or to regulate or prescribe the
price or prices at which such prop-
erty, or products thereof, should be
Sold, or to make criminal the acts of
persons in the acquisition and con-
trol of property which the states of
their residence or creation sanctioned
or permitted aside from the provis-
ions applicable, where congress
might exercise the municipal power.
What the law struck at was combi-
nations, contracts and conspiracies
to monopolize trade and commerce
among the several states or with for-
eign nations. Fuller, C. J., in United
States v. Knight Co., supra. In this
case the contract related exclusively
to the acquisition of refineries and
the business of Sugar refining in
Pennsylvania, and bore no direct
relation to commerce between the
states or with foreign nations.
780 THINGS.
[$607.
Combinations and conspiracies having for their object to re-
strain the freedom of contracts “to buy, sell or exchange goods
to be transported among the several states” are held unlawful
and of no effect, whenever the matter comes before the federal
court in a proper case."
SEC. 607. Wagering Contracts.- A wagering contract is an
agreement to pay money or transfer property upon the hap-
pening of an event not certain to happen, or a contingency
unknown to the parties, and in which they have no other
financial interest than that created by the contract, and where,
in cases of contract to deliver property, the parties have no
intention to deliver.”
At common law wagers were valid unless they were about
a subject-matter which would have condemned any other con-
tract; and the rule as to the illegality of wagers was that a
wager was not enforceable if it led to indecent evidence or was
calculated to injure or pain a third person.”
The common law permitted gaming and gambling, which is
the risking of a stake on a game or chance, in every form, and
only inhibited those wagers which were immoral or tended to
menace the public safety or private security. Lotteries, horse
races, raffles and the like were to the Anglo-Saxons innocent
forms of amusement.”
| United States v. Addyston Pipe,
etc. Co., supra; United States v.
Trans-Missouri Freight Ass'n, Supra;
TTnited States v. Knight Co., supra.
2 Fareira v. Gabell, 89 Pa. St. 99;
Anson on Contracts (2d Am. ed.), 226;
Merchants' S., L. & T. Co. v. Good-
rich, 75 Ill. 554. “There is a clear
distinction between a wager or a
bet and a premium or reward. In a
wager or a bet there must be two
parties, and it is known before the
chance or uncertain event upon
which it is laid is accomplished who
are the parties who must either lose
or win. In a premium or reward
there is but one party until the act
or thing or purpose for which it is
offered has been accomplished. A
premium is a reward or recompense
for some act done; a wager is a stake
upon an uncertain event. In a pre-
mium it is known who is to give be-
fore the event; in a wager it is not
known till after the event.” Alvord
v. Smith, 63 Ind. 62. The mere fact,
that the act is dependent on a future
event or contingency does not make
it a wager. Beedles v. Bliss, 27 Ill.
322. The risk and chance need not
be equal. Shumate v. Com., 15 Grat.
661. The sale of a commodity, pay-
able on condition of the election of
a certain person to office, is a wager.
Id.; Mareau v. Longley, 21 Me. 24.
3 When so conducted as to tend to
debauch public morals, wagering was
an offense at common law. Swigart
v. People, 154 Ill. 284; Anson on Con-
tracts (2d Am. ed.), 229; Gilbert v.
Sykes, 16 East, 150.
4 The case of Cohen v. Virginia, 6
§ 607.] THINGS.
781,
\
From time to time various forms of wagering contracts were
prohibited by acts of parliament, the most important of these
enactments being the statute of 9 Anne, quite generally re-
enacted in this country."
These contracts are treated in connection with other con-
tracts contravening public policy, because in this country, irre-
spective of statute, they are commonly held illegal on grounds
of public policy.”
Wagering contracts appear principally in three forms: First.
Common bets, by which the parties stake money or something
of value upon any race, fight, pastime, sport or chance,” the
outcome of which is made the subject of the wager. Second.
JFutures, a contract taking the form of a sale of some com-
modity, and in its form or substance, if bona fide, nowise ob-
jectionable, or in nowise different from any ordinary sale of a
thing to be delivered in the future; but it being the under-
standing of the parties, either expressed in the contract, as a
condition or proviso, or so mutually understood by the course
of dealing between the parties, outside of the writing, that the
parties were not really intending an actual and bona fide sale.
Third. Options, giving one party what in fact is a mere option
to purchase personal property, the intention being, as in the
case of futures, to settle on a future day by the payment of
the difference between the then market price and the price
at time of contract.” Fourth. Contracts of insurance, which,
though in their nature wagers, are not regarded as illegal ex-
cept where the assured has no interest in the subject of insur-
ance.”
Every-day observation of the novice tells him that certain of
Wheat. 264, involves the rights of
those conducting a lottery under the
authority of the power delegated by
congress to the District of Columbia
expressly authorizing the conduct-
ing of a lottery.
1 Petillon v. Hipple, 90 Ill. 420,
* Love v. Harvey, 114 Mass, 82;
Eldred v. Malloy, 2 Colo. 320; Wil-
kinson v. Tousley, 16 Minn. 299;
Irwin v. Williar, 110 U. S. 499.
*These are the words of the stat-
ute of Anne on this subject, which
has been generally re-enacted in the
TJnited States.
4 Such has been the effect of the
contracts that in some states all op-
tions on personal property are prohib-
ited. Schneider v. Turner, 130 Ill. 28.
Cook v. Oxley, 3 T. R. 653, was a con-
tract giving an option. Not all op-
tion stipulations in contracts are:
illegal; e. g., an option to extend
time or renew or cancel, etc. Pope
v. Hanke, 155 Ill. 617.
5 See INSURANCE,
782 s TELINGS. [$607.
the above contracts are not only legal but commendable, and it
remains only to indicate which are illegal and why. -
Insurance contracts, if based upon a good consideration and
entered into by the party having an insurable interest, are valid,
and inasmuch as they are a distinct subject, insurance will be
made a separate topic head.
Modern Change of View.—Wagering contracts have never
been deemed per se immoral. Indeed we are told by Tacitus
that the ancient continental Saxon had a great passion for
gambling and indulged it to a great extent; but more recently
the courts have recognized a tendency to impoverish the one at
the expense of the other, and to engender reckless and improv-
ident habits, and in a reflex manner affect injuriously the gen-
eral public. As a consequence wagering contracts gradually fell
into disfavor, were condemned by the courts," and this policy
has resulted in statutes in most of the states more or less rigidly
prohibiting the practice of wagering or games and gambling
contracts; but games are not now regarded as unlawful.
If the subject-matter of the wager tended towards indecency
or immorality, or towards the corruption of the public service,
or the illegitimate control of elections and the like, the wager
was void, not because it was a wager, but because any contract
which might injuriously affect the subject would be illegal. So,
independent of statute, many wagers were enforceable in the
United States even where the common law was adopted.”
In order to constitute a wager of the second class, it is not
necessary that both should risk a loss, but it is necessary that
both should intend that the contract shall contemplate not an
1 Mulkey, J., in Cothran v. Ellis, 125
Ill. 496, seems to have lost sight of
this hereditary tendency and ancient
policy, though he no doubt voices the
sentiment of modern publicists when
he declares gambling is the “national
sin.” Swigart v. People, 154 Ill. 284,
involving the race track and pool-
selling games, is one of the greatest
Cases in the books. The copious cita-
tion renders it especially valuable to
student and practitioner. See also
Waldron v. Johnson, infra, p. 783.
* Anson on Contracts (2d Am. ed.),
229; Gilbert v. Sykes, 10 East, 150.
At common law all wagers are re-
coverable but such as are prohibited
by statute, such as are against Sound
policy, and such as tend to a breach
of the peace, to immorality or inde-
cency, or injuriously affect the rights
of third persons. Morgan v. Pettit,
3 Scam. 529; Swigart v. People, 154
Tll. 284. Most of the states, however,
have statutes on the subject, and in
some states the statutes do not cover
all forms of wagers. Johnson v. Fall,
6 Cal. 359; Bass v. Peevey, 22 Tex.
295.
$607.]
THINGS. 783
actual and bond fide transaction, but a risking by one of the
parties to the stake.
Contracts of sale that do not contemplate delivery of the
article, and where the intent is merely to risk the difference in
price according to the fluctuation of the market at some future
time, are considered void as being contrary to public policy."
EIowever, if one of the parties intends a bona fide sale, the
contract may be enforced at his instance, though he has not
at the time the article in possession.” To make a wager both
parties must intend it to be such.”
Time contracts are scrutinized with great care by the courts
to determine whether the parties really intend the delivery of
property. The form of the contract is not allowed to govern,
but, when its validity is challenged, evidence aliunde will be
received to throw light upon the nature of the transaction.*
The position of the commission broker is exceedingly pre-
carious. It is the rule that one who deals with an agent with
1 White v. Barker, 123 U. S. 392;
Pearce v. Rice, 142 U. S. 28; In re
Green, 7 Biss. 155; Gregory v. Wen-
dell, 39 Mich. 337; Augusta Nat. Bank
v. Cunningham, 75 Ga. 366; Lyne v.
Culbertson, 83 Ill. 33; Fortenbury v.
State, 47 Ark. 188; Irwin v. Williar,
supra; Jamieson v. Wallace, 167 Ill.
388; Pearce v. Dill (Ind.), 48 N. E.
Rep. 788; Counselman v. Reichart,
103 Iowa, 430. And the broker who
brings the parties together for the
purpose of entering into such unlaw-
ful agreement cannot recover for
services rendered or losses incurred
by himself on behalf of either in for-
warding the transaction. Irwin v.
Williar, supra; Embrey v. Jemison,
131 U. S. 336. “The policy of the
law,” said Speer, Dist. J., in Waldron
v. Johnston, 86 Fed. Rep. 757, “com-
mands the courts to withhold their as-
sistance from either party. Whether
it be true, as insisted, that this policy,
if respected by the courts, will serve
to discourage dangerous speculation,
will encourage the business com-
munity to that orderly and legiti-
mate traffic and industry which is
the sure precursor of success to the
individual and large prosperity to the
public, will withhold from the youth-
ful or the uninformed those tempta-
tions towards daring ventures which
often result in bankruptcy and ruin,
and will make it more difficult for
skilful operators to manipulate for
their own profit the rise and fall in
the prices of the great staples upon
which the welfare of the people de-
pends, it may not be here profitable
or appropriate to discuss. It is suffi-
cient to ascertain what is the definite
policy of the law, and to obey it.”
2Pixley v. Boynton, 79 Ill. 351; Greg-
ory v. Wendell, supra; Harvey v.
Merrill, 150 Mass, 1; 5 L. R. A. 200,
and note; Cole v. Milmine, 88 Ill. 349;
Rumsey v. Berry, 65 Me. 570.
3 Frost v. Clarkson, 7 Cow. 724.
4 Sprague v. Warren, 26 Neb. 326;
3 L. R. A. 679, and note. The ques-
tion of intention is one of fact for
the jury. Pope v. Hanke, 155 Ill.
(317.
50
784. THINGS. [$608.
notice that he is using his principal's funds is liable to the prin-
cipal for the money, irrespective of the character of the trans-
action, and in many states the loser of money in such deals
may recover it back from the broker.” f
SEC. 608. Effect of Illegality.—If the object of the contract
be one which is forbidden or discouraged by the law, then if
the contract be executory the court will not enforce it.” “If,”
said Buller, J., ““a party comes into a court of justice to en-
force an illegal contract, two answers may be given to his de-
mand: the One that he must draw justice from a pure fountain,
and the other that potior est conditio possidentis.” -
On the other hand, if the contract be executed the courts
will not extend relief. If suit is brought for relief from the op-
eration of, or to recover what has been parted with under, such
executed contract, the court will apply the maxim in pari delioto
potiorest conditio defendentis."
The manner in which the evidence of illegality comes before
the court is not material.
If the taint appears the action will
not be allowed. The court will refuse to proceed. The defend-
ant cannot waive his advantage."
1 Anderson v. Kissam, 35 Fed. Rep.
699; Lamson v. Beard, 94 Fed. Rep.
30. --
2 Tenny v. Foote, 95 Ill. 99.
3 Rennett v. Chambers, 55 U. S. 38;
Ind., D. & S. R. Co. v. Ervin, 118 Ill.
250.
4 In Mount v. Stokes, 4 T. R. 564.
5 In pari delicto potiorest conditio
possidentis, - meaning that where
the parties are in equal fault the po-
sition of the party in possession is the
better One.
6 That is, where the parties are in
equal fault the defendant is in the
better position. Hill v. Freeman, 73
Ala. 200; Hutchins v. Welden, 25 Ind.
80; Hoffman v. McMullen, 83 Fed.
Rep. 372. In Doe d. Raguet v. Roll, 7
Ohio, 71 (Part 2), the court used the
following language: “This course,
so totally opposite in the two cases,
is intended to be subservient to the
same end — the prevention of an im-
moral act. As long as the agreement
continues executory there is an in-
centive to the commission of the
deed; but when it is executed, no fur-
ther motive of this kind exists, since
the estate has already vested, of the
money actually been paid.”
7 In Oscanyan v. Arms Co., 103 U. S.
268, Mr. Justice Field said: “If after
receiving a pardon, or suffering the
punishment imposed upon him [for
robbery, arson, or other Crime, com-
mitted for hire], the culprit should
sue the instigator of the crime for
the promised reward, the court would
not hesitate a moment in dismissing
his case, and sending him from its
presence, whatever might be the char-
acter of the defense. It would not
be restrained by defects of pleading,
nor, indeed, could it be by the defend-
ant’s waiver.” “In such cases,” said
Mr. Justice Swayne, in Coppell v.
|Hall, 7 Wall. 542, “there can be no
waiver. The defense is allowed not,
for the sake of the defendant, but of
§ 608.] THING S. TS5
In the case of executory contracts, however, one of the par-
ties may wish to disaffirm. In such a case it is said there is a
locus penitentiae, and he may recover his money back. Where
money is deposited in the hands of a third party to be paid over
on the happening of an event, the illegal purpose is not effected
till such third party has so paid it over. In such a case the
depositor may recover it.” t
“In Parī Delioto” Means Fºuality of Wrong.—And though
parties may concur in an illegal act, the circumstances of the
case may be such that they will not be deemed in all respects
Žn pari delicto. Relief in such cases will be granted to the
party who has acted under circumstances of imposition, hard-
ship or undue influence.” Thus, one who has paid usurious in-
terest may, at common law, recover the excess back, as the law
considers the borrower as measurably within the power of the
lender.” .*
It is laid down, however, that where usury is voluntarily paid
and the transaction closed, the money so paid cannot be recov-
ered; but so long as any part of the debt remains unpaid,
money paid as usurious interest on the debt is regarded as paid
On the debt and not as usury voluntarily paid.” And if the
payee assigns the debt after it has been partly paid, thus cut-
ting off the defense of usury, it is held by some courts that the
usurious interest may be recovered."
But it is to be borne in mind that there is a difference be-
2As where money is deposited with
the law itself. . Whenever the
legality appears, whether the evi-
dence comes from one side or the
Other, the disclosure is fatal to the
Case. . . . A stipulation in the
most Solemn form to waive the ob-
jection would tainted with the vice
Of the original contract, and void for
the same reasons. Wherever the con-
tamination reaches it destroys. The
principle to be extracted from all the
Cases is that the law will not lend its
Support to a claim founded upon its
violation.”
* Taylor v. Bowers, 1 Q. B. D. (C.A.)
300; Mount v. Wait, 7 Johns, 434;
Broom's Maxims, 720; Anson, Con-
tracts (2d Am. ed.), 264.
a stakeholder dependent on the re-
sult of a bet. See Hampden v. Walsh,
1 Q. B. D. 189; Knowlton v. Congress,
57 N. Y. 518; 103 U. S. 49.
3 Duval v. Wellman, 124 N. Y. 156.
4 Wheaton v. Hibbard, 20 Johns.
290; 11 Am. Dec. 284; Wood v. Lake,
13 Wis, 85. See Mobile & O. R. Co. v.
Dismukes, 94 Ala. 139; 17 L. R. A. 113:
Schermerhorn v. Tolman, 14 N.Y. 93;
White v. Franklin Bank, 22 Pick.
181.
5 Hewett v. Dement, 57 Ill. 500;
Payne v. Newcomb, 100 Ill. 612.
6 Woodworth v. Huntoon, 40 Ill. 132.
786 TEIIINGS. [$$ 609, 610.
tween enforcing illegal contracts and asserting title to money
which has arisen from them. This distinction has been stated
in a recent case to be, that “wherever the party seeking to re-
cover is obliged to make out his case by showing the illegal
contract or transaction, or through the medium of the illegal
contract or transaction, or when it appears that he was privy
to the original illegal contract or transaction, then he is not en-
titled to recover any advance made by him in connection with
that contract or money due him as profits derived from the
contract; but when the advances have been made upon a new
contract, remotely connected with the original illegal contract
or transaction, and the title or right of the party to recover is
not dependent upon that contract, but his case may be proved
without reference to it, then he is entitled to recover.””
SEC. 609. Impossibility.—A contract to do that which is
physically impossible is not binding, but if the thing is possi-
ble in itself it is no reply to an action for a failure to perform
that the thing was impractical, or not within the power of the
defendant to accomplish.”
If the matter is within the range of human possibility, even
though it be a matter that a man of any prudence and fore-
sight would not attempt to accomplish within the specified
time or in the manner specified, nevertheless the promisor
runs these risks.”
In accordance with the maxim that a man shall not take ad-
vantage of his own wrong, it is held that if by his own act one
is disabled from fulfilling his contract, he is liable for the
breach.
SEC. 610. The Obligation of a Contract.*—The essential re-
sult of a contract or agreement is a right vested in one party
and an obligation incurred by the other; and inasmuch as this
right and obligation are correlative, it follows that, from the
moment the contract is complete, the parties are bound to
1 Hoffman v. M'Mullen, 83 Fed. Rep. ant agreed to deliver two grains of
372–384. This is supported by Brooks corn on Monday following, and pro-
v. Martin, 2 Wall. 70; King v. Wi- gressively doubling the quantity
nants, 71 N. C. 469. every Monday during the year. It
2 Broom’s Maxims, 249; McNeil v. was held impossible. See Walker v.
Reid, 9 Bing, 68. Tucker, 70 Ill. 527; Bennett v. Morse,
3 Thornborough v. Whitacre, 2 Ld. 6 Colo. App. 122.
Raym. 164. In this case the defend- 41 Powell on Contracts, 249.
*::g
§ 610.] THING.S. 7S7
each other and must remain so bound until this bond is dis-
solved in some of the various modes recognized by the law.
The States Cannot Impair These Obligations.—So important
is this obligation that one of the few clauses in the national
constitution restricting the powers of the states is that One
Rnown as the obligation of a contract clause," which seems to
have been derived, or at least suggested, by the prominence
given to the term “obligation ” in the civil law.” The inhibi-
tion applies to contracts between the states and others as well
as to private contracts.” -----
The Wature of the Obligation.— The obligation arises pri-
marily by the acts of the parties, but in a broader sense all
their acts, as we have seen, are taken in reference to the law,
and it is thoroughly settled that the laws which subsist at the
time and place of the making of a contract, and where it is to
be performed, enter into and form a part of it, as though they
were expressly referred to or incorporated in its terms."
This principle embraces alike those laws which affect its va-
lidity, construction, discharge and enforcement.”
1 Section 10, article I, declares that
no state shall pass any law “impair-
ing the obligation of a contract.” It
is quite generally believed to have
been suggested by James Wilson, and
to have been suggested to him by his
studies of the civil law. SeeTHunter,
arg., Sturges v. Crowninshield, 4
"Wheat. *151.
2 Sufficient has heretofore been said
to indicate the nature and extent of
the limitation of powers of the states
in this respect. Amte, secs. 99, 100,
342, 343, note 1.
3 Fletcher v. Peck, 6 Cranch, 87;
State v. Young, 29 Minn. 528.
4 Von Hoffman v. City of Quincy,
4 Wall. 535. “The obligation of a
contract in law is that element of
duty or promise which a party can
be compelled to perform. If per-
formance cannot be compelled, there
is no legal obligation in the con-
tract.” Fitzgerald v. Grand Trunk
R. Co., 63 Vt. 169. Cf. State v. Young,
29 Minn. 528–29. “A contract is an
agreement in which a party under-
takes to do, or not to do, a particular
thing. The law binds him to per-
form his undertaking, and this is, of
course, the obligation of his con-
tract.” “It has been con-
tended that, as a contract can only
bind a man to pay to the full extent
of his property, it is an implied con-
dition that he may be discharged on
surrendering the whole of it. But it
is not true that the parties have in
view only the property in possession
when the contract is formed, or that
its obligation does not extend to
future acquisitions. Industry, tal-
ents and integrity constitute a fund
which is as confidently trusted as
property itself. Future acquisitions
are, therefore, liable for contracts;
and to release them from this liabil-
ity impairs their obligation.” Mar-
shall, C. J., in Sturges v. Crownin-
shield, 4 Wheat. 122.
5 Von Hoffman v. City of Quincy,
4 Wall, 535.
'788 THINGS. [$ 610.
Obligation Distinguished from Contract.—We have hereto-
fore noticed a distinction between a mere naked agreement and
a contract; but it is evident from the language of that clause in
the federal constitution which has been alluded to, against im.
pairing the obligation of a contract, that there is a distinction
recognized between the convention or contract and its obliga-
tion." 4.
This would sufficiently appear from the fact that the obliga-
tion is not extinguished by performance; * but it also appears
that the obligation may be affected or impaired without directly
affecting the contract itself, and leaving it for some purposes a
valid and existing contract.” - -
It has been quite generally admitted that the words “obliga-
tion of,” in connection with the contract, mean something other
and different from the contract itself, otherwise the clause
would have read, “no state shall pass a law impairing a con-
tract.” 4
Obligation and Remedy Distinguished.—That there is a plain
distinction between the obligation of a contract and the rem-
1 “The error of those who contro-
vert the constitutionality of the
bankrupt law under consideration,
in its application to this case, if they
be in error at all, has arisen from not
distinguishing accurately between a
law which impairs a contract and
one which impairs its obligation. A
contract is defined by all to be an
agreement to do, or not to do, Some
particular act, and in the construc-
tion of this agreement, depending
essentially upon the will of the par-
ties between whom it is formed, we
seek for their intention, with a view
to fulfill it. Any law, then, which en-
larges, abridges, or in any manner
changes this intention, when it is
discovered, necessarily impairs the
contract itself, which is but the evi-
dence of that intention.” “This leads
us to a critical examination of the
particular phraseology of that part
of the above section which relates to
contracts. It is a law which impairs
the obligation of contracts, and not
the contracts themselves, which is
interdicted. It is not to be doubted
that this term obligation, when ap-
plied to contracts, was well consid-
ered and weighed by those who
framed the constitution, and was in-
tended to convey a different mean-
ing from what the prohibition would
have imported without it.” Per
Washington, J., Ogden v. Saunders,
12 Wheat. 213–255.
* “A contract executed, as well as
One which is executory, contains obli-
gations binding on the parties. A
grant, in its own nature, amounts to
an extinguishment of the right of
the grantor, and implies a contract
not to re-assert that right. A party
is therefore always estopped by his
own grant.” Fletcher v. Peck, 6
Cranch, 87–135.
3 The contract upon which suit is
barred by limitation or by discharge
in bankruptcy may still be sufficient
to constitute a consideration.
4 Gunn v. Barry, 15 Wall. 610; Lou-
isiana v. St. Martin's Parish, 111 U.S.
716.
§ 610.]. THINGS. 789
edies which the law affords under it is now thoroughly estab-
lished, and the rule is that the inhibition does not extend to
mere changes in the modes of procedure or substitution of rem-
edies so long as there is left some adequate means of enforcing
the obligation." -
It is generally affirmed that there must remain a judicial
remedy according to the course of the common law,” but this
expression is not without an exception.”
“No attempt has been made to fix definitely the line between
alterations of the remedy which are to be deemed legitimate,
and those which, under the form of modifying the remedy, im-
pair substantial rights. Every case must be determined upon
its own circumstances. Whenever the result last mentioned is
produced, the act is within the prohibition of the constitution,
and to that extent void.” “
1 “The distinction between the obli-
gation of a contract and the remedy
given by the legislature to enforce
that obligation has been taken at
the bar, and exists in the nature of
things. Without impairing the obli-
gation of the contract, the remedy
may certainly be modified as the
wisdom of the nation shall direct.
Confinement of the debtor may be a
punishment for not performing his
contract, or may be allowed as a
means of inducing him to perform
it. But the state may refuse to in-
flict this punishment, or may with-
hold this means, and leave the con-
tract in full force. Imprisonment is
no part of the contract, and simply
to release the prisoner does not im-
pair its obligation.” Marshall, C. J.,
in Sturges v. Crowninshield, 4 Wheat.
122–200.
2 Ubi jus ibi remedium: “There
can be no civil right where there is
no legal remedy.” Johnson, J., Ewell
v. Daggs, 108 U. S. 149.
* As applied to the vast majority of
Contracts such expressions are cor-
rect; for, as a general rule, wherever
&he law recognizes an obligation, it
gives a judicial remedy to enforce it.
But there are exceptions, as, gener-
ally, in the case of state contracts,
where, without ignoring the obliga-
tion, and without regard to the va-
lidity or nature of the contracts them-
selves, the law, from motives of
public policy, exempts the party
from direct judicial action to enforce
them. When read with their Con-
text and in view of the subject-mat-
ter then in hand, the expressions
referred to cannot be understood as
denying the obligation of these latter
contracts. They must be understood
as referring to those agreements or
obligations—such as nude pacts, or
obligations to exercise gratitude, be-
nevolence and the like — of which the
civil law takes no account, and not
to those contracts which courts will
recognize, whenever they have an op-
portunity, by the presence before
them of parties claiming rights or
exemption under such contracts.”
State v. Young, 29 Minn. 474–528.
4 Von Hoffman v. Quincy, 4 Wall.
535–553, citing Bromson v. Kinzie, 1
How. 311; McCracken v. Hayward, 2
id. 608.
790 THINGS. [$ 611.
SEC. 611. Dissolution.— An agreement and obligation once
formed binds the parties until it is dissolved by one of the
modes recognized by law. These are: Mutual agreement be-
tween the parties; novation; Merger in some other form of
agreement, or security; some event subsequently arising ren-
dering the performance impossible, e.g., by some condition sub-
sequently arising, such as death, sickness, act of God, act of
enemies of the state, unforeseen conditions; complete perform-
ance,' limitation, the passing of time,” or discharge in bank-
ruptcy, which has been noticed.
By Agreement to Peseind or to Proceed Wo Further.—The par-
ties to an executory contract may by mutual agreement discharge
each other from the contract. In such a case the release by
one party is the consideration for the release by the other.” In
England negotiable instruments are considered an exception to
this rule," but they are not so regarded in this country.” But
even in the case of negotiable instruments a surrender of the
evidence of the debt, if without fraud or mistake, operates to
discharge the liability." The above does not apply to the case
of a contract fully performed. In such a case there must be a
release of the cause of action arising from full performance.
It is an elementary rule that agreements under seal cannot
be changed by a mere agreement of less solemnity,' and it re-
sults that as to contracts under seal they cannot be modified
by a subsequent parol understanding.” But after a breach of
a contract under seal the cause of action may be released by
a new oral contract.”
1 Complete performance, though
Sometimes spoken of as a discharge,
Can Scarcely be said to discharge the
Contract, and, as we have seen, it
does not destroy the obligation of the
Contract. See Anson, Contracts, 337.
2 The enforceable tie of a contract
may be dissolved by the efflux of
time understatutes of limitation, but
such statutes operate upon the rem-
edy rather than effect a dissolution
of contract. See “Limitation.”
3 Kelly v. Bliss, 54 Wis, 187.
4 Foster v. Dawler, 6 Exch. 839.
3 Myers v. Byington, 34 Iowa, 205.
6 Larkin v. Hardenbrook, 90 N. Y.
334.
7 “It has become a maxim that,
nothing is so consonant to natural
equity as that every contract should
be dissolved by the same means.
which rendered it binding.” Broom’s
Leg. Max. (8th ed.) 877. See Loach v.
Farnum, 90 Ill. 368; Brookshire v.
Brookshire, 8 Tred. Law, 74; 47 Am.
Dec. 341–348; Goss v. Nugent, 5 B. &
Ad. 58.
8 B. & O. & C. R. R. CO. V. I. C. R. R.
Co., 137 Ill. 30.
9 Delacroix v. Bulkley, 13 Wend. 71.
§ 611.] THINGS. 791.
This rule must be received in a modified way, subject to
another which cannot be said to be an exception, but to arise
on a different state of facts, that the conduct of one person, in-
dicative of an intention not to require precise performance, and
which has caused another to act to his detriment, or to place
himself in a position which he otherwise would not have as-
sumed, may operate as an estoppel against insisting upon the
precise terms of the contract."
In such cases the conduct need not be accompanied by any
solemnity, but a mere agreement, if relied upon, must be of equal
dignity with the original contract.” So a new parol contract of
itself is not sufficient; but if such a new contract is acted upon
and the performance recognized and adopted by the other party,
this combination of circumstances constitutes a substitution of
the original stipulations.”
By a Substituted Agreement.—The parties may, by entering
into a new agreement between themselves in relation to the
same subject, either expressly or by implication waive the
Original contract. - -
If the waiver is by implication, it must clearly appear from
the inconsistency of the new terms with the old ones." The
authorities are not harmonious on the question whether a coil-
tract, required to be in writing under the statute of frauds,
may be modified by a subsequent oral agreement. It is the
better opinion that such a contract cannot be varied by a sub-
sequent agreement unless such new agreement be in writing.”
There is, however, a distinction between a substitution of
one agreement for another and a delay in performance at the
request of one of the parties." In the latter case the contract.
is not changed.
1 MOSes v. Loomis, 156 Ill. 392; Mon-
son v. Bragdon, 159 Ill. 65.
2 “A contract may be waived or set
aside, and more especially so in the
Contemplation of a court of Chan-
cery, either by the mutual consent
or conduct of the parties, or by the
conduct or consent of the party in
whose favor and for whose benefit
such stipulation is made.” Watson
v. White, 152 Ill. 364,
3 Richardson v. Cooper, 25 Me. 45;
Worrell v. Forsythe, 141 Ill. 30; Smith
v. Smith, 55 Ill. 204.
4 Reed v. McGrew, 5 Ohio, 330; Rus-
sell v. Stowe, 36 Ill. 18; Hargrave v.
Conroy, 19 N. J. Eq. 218.
5 Swain v. Seamans, 9 Wall. 272.
6 Hickman v. Haynes, L. R. 10 C.
P. 606; Anson, Contracts (2d Am. ed.),
343.
†92 THINGS. [$ 611.
Py Wovation.—As we have seen, a substituted contract is
one substituting new terms between the same parties," but
in many instances it suits the convenience of the parties to
substitute a new person as debtor, or a new promisor or prom-
isee.” There must be more than a change of parties; one
must be released and a new one substituted. Such a substitu-
tion is termed a novation.” --->
It will be seen that it resembles somewhat an assignment,
excepting that in a sale or assignment it is the thing which is
sold, whereas in a novation the change is in the parties and
not in the subject or the terms of the contract.
The Roman law, while it would not recognize any rights of
third persons in contracts made for their benefit, as was some-
times allowed by the common law, recognized these contracts
Of novation.* .
Novation is never presumed, but must always be proved. The
promise to pay the debt must be a valid and binding promise
to work a discharge of the old debtor,” and to constitute a nova-
tion the discharge of the old debtor must be unqualified."
And further, there is not a novation without the consent of
the three parties—the creditor, the original debtor, and the sub-
stituted debtor; for there is to be carefully noted the distinc-
tion between a novation and a mere promise to answer for the
debt of another." The one is within the statute of frauds, the
other is not.”
1 Stewart v. Keteltas, 36 N. Y. 388;
Rogers v. Rogers, 139 Mass. 440.
2 Wayde v. Luer, 3 Den. 410; Lud-
ington v. Bell, 77 N. Y. 138.
3 This is a word foreign to the com-
mon law, and has its natural mean-
ing only in the civil law.
4 Hamlin v. Drummond, 91 Me. 175.
5 Spycher v. Werner, 74 Wis. 456;
.5 L. R. A. 414; Eden v. Chaffee, 160
Mass. 225. “Were it not for the stat-
'ute of frauds, it would seem that the
discharge of the old debtor would be
a sufficient consideration to make
valid the new promise; and it would
logically follow that if the new
ply with the statute of frauds, such
promise would be valid. But, where
promise be in writing, so as to com-
the discharge of the original debtor
also works a discharge of the sub-
stituted debtor’s debt to him in con-
sideration of the substituted debtor's
promise to pay the same to the cred-
itor, the statute does not apply, for
the new promise is still to pay his
own debt, but to a substituted cred-
itor, and works a complete novation.”
Hamlin v. Drummond, 91 Me. 175.
6West, etc. Bronze Co. v. Portrey,
50 Neb. 801; Lowe v. Blum, 4 Okla.
260. w -
7 Dean v. Ellis, 108 Mich. 240.
8 Eden v. Chaffee, 160 Mass. 225.
§ 612.] THINGS. '793
Merger.— Novation is sometimes spoken of as a merger," but
merger need not have the same attributes necessary to nova-
tion, nor need novation have the characteristics necessary to a
merger. - -
What is meant by merger is that the identical contract or
agreement be evidenced by an instrument of greater dignity;
as where an agreement rests in parol, and is put into a writing
under seal, or where the obligation of the contract passes into
a higher form of security, as in the case of a judgment re-
covered.”
It is sometimes said that the Oral negotiations of parties are
merged in a written contract evidencing their intention; but
merger is not used in such cases in its strict technical sense,
because the written contract is of no higher nature than the
Oral one.” p
Impossibility of performance arising subsequent to the mak-
ing of a contract may, under some circumstances, excuse per-
formance. A party will be released from his obligation if
performance is rendered impossible by act of God,” the provis-
ions of a law, or the conduct of the other party;” but non-per-
formance cannot be excused by mere inevitable accident or the
happening of an unforeseen contingency."
SEC. 612. Privity.— Under the subject of parties to contracts
we have considered the capacities and incapacities of those who
enter into and are directly instrumental in the formation of
contracts, i. e., the capacity of contracting parties; but in some
instances the law allows persons who have not thus been instru-
mental in the formation of a contract to avail themselves of its
provisions or be affected by its stipulations.
1 Anderson's Law Dict, tit. “Nova-
tion.”
2 Anson on Contracts (2d ed.), 431;
Taylor v. Root, 4 Keyes, 344.
3 Id.
4 Dewey v. Union School Dist., 43
Mich. 480. As where the subject-
matter is destroyed (Shear v. Wright,
60 Mich. 159), or the party dies be-
fore time for performance, where
contract calls for a personal act.
Smith v. Wilmington Co., 83 Ill. 498;
Howe Sewing Machine Co. v. Rosen-
still, 24 Fed. Rep. 583; Green v. Gil-
bert, 21 Wis. 395.
5 Ingle v. Jones, 2 Wall. 1.
6 Jones v. United States, 96 U. S.
24. As in case a party taking a lease
for a number of years agrees to mine
a certain number of tons of coal per
annum and the Coal in the mine be
exhausted. Walker v. Tucker, 70 Ill.
527.
794. THINGS. [$ 612.
This result is brought about in two ways: First, under the
doctrines of agency, by which one person is allowed to be rep-
resented by another—a topic which will receive separate treat-
ment." Second, by reason of a relation which may arise in
several ways and which passes under the technical term “priv-
ity.” 2
If the distinction between these two grounds is kept clearly
in mind, much of the apparent confusion is avoided.
By the doctrines of privity, persons standing in certain rela-
tions” to those who actually make the contract and pass the
consideration, or furnish the subject-matter, are sometimes held
to have a sufficient connection with the contract or the subject-
matter to be allowed to avail themselves of promises made for
their benefit.
It proceeds upon the theory that the law operating on the
conduct of the party creates a duty or implies an obligation, or,
as it is said, establishes privity.”
Third. It is claimed that there is recognized in some juris-
dictions a third rule, viz.: That, irrespective of agency or privity,
any person for whose benefit a simple contract is made may
enforce it by an appropriate action in his own name; and while
there are expressions which standing alone will justify the view,
it is doubtful if any state in the Union is committed by decision
to that rule.” ſº
Privity arises in two ways—by operation of law and by the
acts of the parties themselves through the medium of a contract,
expressed or implied." Privity may exist by reason of the re-
3 In Lawrence v. Fox, supra, an-
other ground of decision was the re-
lation of debtor and creditor which
existed between the third person and
the promisee, and the earlier cases
relied on are of the same character.
4 Lawrence v. Fox, 20 N. Y. 273.
1 Some of the extreme cases allow-
ing a third party to sue on a promise
made to another for his benefit really
proceed on the ground of agency —
an entirely distinct principle. See
Marston v. Bigelow, 150 Mass. 45;
5 L. R. A. 43, and cases. Even in
Lawrence v. Fox, a leading case, one
Of the grounds is that of agency.
*The doctrine of privity always
determines who may enforce it, and
is most practically discussed along
with the rules of procedure, which
determine who may sue upon a con-
tract, i. e., parties to actions.
5 Early Massachusetts and New
York cases state the rule broadly,
but these decisions fall far short of
the rule. Marston v. Bigelow, Supra-
Tawrence v. Fox is the extreme, and
every later case has taken views
closer to the rule requiring privity.
6 Andrews' Stephen's Pl, 32.
§ 612.] TEIINGS. 795
lationship existing between the third person and the promisee.
The relation sometimes arises, not alone by the acts of the par-
ties, but by a change in the relations which takes place sub-
sequently to making the contract, without any intention of
creating a new contract; e. g., by death or marriage such a
change may take place."
According to the Roman law no one not a party to a contract
could acquire rights under it. Only the person who uttered
the binding words, or went through the binding formalities,
could sue and be sued. Aside from the rules of agency, that
law would not take notice that a stipulation was made in be-
half of another than he who made the contract.”
It is obvious that this was a natural result of enforcing only
contracts accompanied with certain formalities.
For the same reason these rules obtained in the English law
until after an action was allowed on simple contracts; and
so far as Solemn contracts are concerned, the rule has always
been at common law, and generally under the codes, that only
parties to a contract under seal can sue on it; that is, only a
covenantee can sue, even though the covenant be expressly
made for the benefit of another.” {
But as to simple contracts, after the time when their obliga-
tion was recognized, the rule was under some circumstances
relaxed, and where a contract was expressly made for the
benefit of a third person who occupied some relation of priv-
ity to the consideration, the subject-matter,” or to the promisee,
1 In case of death the administrator mend it, it ought not to be longer
and heir become in privity. Between
husband and wife a duty of support
exists, and a promise procured by
one for the benefit of the other is
supported because of this privity; but
kinship without obligation is not
generally held sufficient. Marston
v. Bigelow, 150 Mass. 45.
2 Sanders' Justinian (Hammond’s
ed.), 457.
3 Andrews' Stephen's Pl. 33, note
1; Moore v. House, 64 Ill. 162; Wil-
Hard v. Wood, 135 U.S. 309. But it is
said in some late cases that this dis-
tinction being a technical one, and
having no longer any merit to com-
recognized. Jefferson v. Asch, 53
Minn. 446; 25 L. R. A. 257. And See
Emmitt v. Brophy, 42 Ohio St. 82;
Bassett v. Hughes, 43 Wis. 319. And
statutory changes in some states
have caused the adoption of a differ-
ent rule in the Courts in this regard.
Dean v. Walker, 107 Ill. 540; 47 Am.
Rep. 467. A statute which abrogates
the distinction between sealed and
simple contracts changes this rule.
4. It is claimed that the common
law went further and required noth-
ing further than a clearly expressed
intention that the contract was for
the benefit of the person suing. Law-
796 TELINGS. [$ 612.
such person was allowed to enforce the promise by an action.
This result was never based solely on the mere fact of the
agreement, but on some collateral fact establishing the rela-
tion of privity." The line of cleavage is the controversy over
what constitutes privity, and in many states the mere relation
of debtor and creditor has been held sufficient. It also be-
came early established at common law, that where the prop-
erty or money of one was deposited with another, who accepted
it under a promise to pay it over to a third, a quasi-relation of
trust was implied, upon which might be based an action for
money had and received, or an action to recover the thing;”
and in some early cases, near kinship was allowed as a basis
of what was called a privity in blood, but in the later English
law the doctrine has been severely contracted.”
The early Massachusetts cases extended the rule farther than
the English law had ever done, and it was at one time held to
be well settled that wherever a promise is made for the benefit
of a third person such person might sue on it,” and the expres-
sions in these cases are not so guarded and limited as are the
decisions in the later cases; and subsequent decisions in that
state have limited the doctrine until the law of Massachusetts
is typical of the conservative view of the subject.”
Early expressions in the New York courts, dicta rather than
decision, likewise extended the rule beyond its reasonable lim-
its; and in a leading case where one person borrowed of an-
rence v. Fox, supra, relying on Dut-
ton v. Poole, Vent. 318; Schermer-
horn v. Vanderheyden, 3 Johns. 140.
1 Pollock on Contracts, 196; Austin
v. Seligman, 18 Fed. Rep. 519; Gifford
v. Corrigan, 117 N. Y. 256.
2 Such is the case of Eddy v. Rob-
erts, 17 Ill. 505, and the case of Law-
rence v. Fox, 20 N. Y. 273. Where
a defendant has in his hands money
which in equity and good conscience
belongs to another, the law operates
On the acts of the parties and implies
a promise to pay. 1 Cranch, App. 423–
443; Alderson v. Ennor, 45 Ill. 128;
Hosford v. Kanouse,45 Mich. 620; Ben-
ner v. Weeks, 159 Pa. St. 504; Brewer
v. Dyer, 7 Cush. 337. Indebitatus as-
sumpsit is an equitable action. Mel-
len v. Whipple, 1 Gray, 317.
3 Pollock on Contracts, 198; Austin.
v. Seligman, supra; Marston v. Bige-
low, supra.
4 Hall v. Marston, 17 Mass. 400;
Brewer v. Dyer, 7 Cush. 337.
5The recent Massachusetts cases
refuse to go beyond the limits laid
down in Mellen v. Whipple, supra,
which fell within the rule of quasi-
trust relation, where one receives
money or a thing to give to another.
Exchange Bank v. Rice, 107 Mass.
. 37, discrediting Brewer v. Dyer, 7
Cush. 337; Marston v. Bigelow, 150
Mass, 45; 5 L. R. A. 43.
§ 612.] THINGs. - 797
other, who owed a third, and promised to repay the money to
the third person, who had no interest in the transaction and
occupied no relation to either party excepting that of a cred-
itor of the promisee, he was allowed to maintain a suit upon it.
This ruling was based upon the fiction of agency, or another
view more equitable but equally fictitious, that, being a cred-
itor of the promisee, he was sufficiently in privity."
These extreme cases mark the limit to which the American
courts have gone, and the following rules may be taken as
quite well established by the consensus of opinion:
1st. Under ordinary circumstances one who is not a party
or a privy to a contract cannot be bound by it without his
consent.”
2d. Neither will the law allow one to derive any advantage.
from a contract in which he neither has any pecuniary interest,
nor takes any steps to bring it about.
3d. Under certain circumstances and with important limita-
tions one party may be allowed to derive an advantage from
a promise made for his benefit, even though he has not had a
hand in its making.
The right of a party to maintain an action on a promise, not
under seal, made by another for his benefit, although formerly
much controverted, is now the prevailing rule.”
Every state,
under some circumstances, allows this.
1 In Vrooman v. Turner,69 N.Y.280;
25 Am. Rep. 195, citing and follow-
ing King v. Whitely, 10 Paige, 465,
and Lawrence v. Fox, 20 N. Y. 268,
the right of the third party to main-
tain an action is restricted to those
cases where there is an intent by the
promisee to secure some benefit to
such third party, and some privity
between the two, some obligation or
duty owing from the former to the
latter, which would give him a legal
or equitable claim to the benefit of
the promise, Or an equivalent from
him personally.
2 Boston Ice Co. v. Potter, 123 Mass.
28.
& Herrick v. Lindsay, 93 U. S. 143;
Austin v. Seligman, Supra. See Brent
v. Davis, 9 Md. 217; Isom v. Johns, 2.
Munf. (Va.) 272; Rush v. Good, 14 S.
& R. (Pa.) 226. Insurance cases even
require an insurable interest. Mu-
tual Life Co. v. Stibbie, 46 Mél. 302;
Maloure v. Brown, 16 M. & W. 128;
Board of Education v. Robinson, 34.
Bac. Rep. 296; Allen v. South Bost.
R. Co., 150 Mass, 200; Sterling v. Ryan,
72 Wis. 36; Allen v. Woodward, 22.
N. H. 544; Bull v. Brockway, 48 Mich.
523; Walker v. Counant, 69 Mich. 321;
Schunster v. Kansas City R. Co., 60.
Mo. 290; Garrett v. Conklin, 52 Mo.
App. 654; Stoudt v. Hine, 45 Pa. St.
30; Hopkins v. Beebe, 26 Pa. St. 85;
Allen v. Irwin, 1 S. & R. 549; Calais.
v. Whidden, 64 Me, 249; Louis v. Saw-
yer, 45 Me. 332; Wescott v. Sharp, 50.
‘79S THINGS. [$ 612.
4th. But in order to make an enforceable action of this kind,
the third person in whose favor the promise is made must be
in privity either in consideration or a privity to the stipulation,
3. e., there must be some relationship of debtor or creditor,
some conceivable interest, some obligation growing out of
status or the like, upon which to found the necessary equity of
allowing a third person who has had nothing to do with the
making of a contract, and may not even know of its formation,
I
a remedy upon it in the courts.
Such is the doctrine of the New York courts, which, as above
remarked, carried the principles of privity to their farthest
limit.”
There must be some relation of duty or liability between the
promisee and the third person.”
It is required in all states that some relation to the subject-
matter of the contract or the
N. J. L. 392; Nolan v. Manton, 46
N. J. L. 231: Whitehead v. Peck, 1
Kelly, 140; Crews v. Heard, 7 Ga. 60;
Nat. Bank v. Grand Lodge, 98 U. S.
123.
1 Prof. Wharton, in a valuable note
to Austin v. Seligman, 18 Fed. Rep.
525, says: “But from the extension
not unnaturally applied to this ruling
of Lawrence v. Fox, the courts after
a while started back. “I do not un-
derstand,” said Rapello, J., “that the
case of Lawrence v. Fox has gone so
far as to hold that every promise
made by One person to another, from
the performance of which a third
person would derive a benefit, gives
a right of action to such third party,
he being neither privy to the action
inor the consideration. To entitle
him to an action the contract must
have been made for his benefit. He
must be the party intended to be
benefited.’ And this limitation not
being found sufficiently stringent, it
was afterwards declared that ‘to give
a third party who may derive a ben-
efit from the performance of the
promise an action, there must be:
First, an intent by the promisor to
consideration, or some duty to
Secure some benefit to the third
party; and second, some privity be-
tween the two, the promisor and the
party to be benefited, and some obli-
gation or duty owing from the former
to the latter, which would give him
a legal Or equitable claim to the ben-
efit of the promise, or an equivalent
to him personally.” And with a still
more perceptible retreat to the old
rule, Danforth, J., in a later case, ex-
cludes from the right of suit on a
Contract, all strangers to whose inci-
dental benefit it would, if performed,
imure. On the other hand, we have
a strong line of authorities in which
the condition of privity of contract
is apparently dispensed with, and in
which the right of beneficiaries to
sue on contracts is sustained when-
ever the intention of the contract
was that they should specifically
reap its fruits.” With deference it
is submitted that the cases cited by
Prof. Wharton do not proceed to the
length indicated by the note.
2 Simson v. Brown, 68 N. Y. 355;
Garnsey v. Rogers, 47 N. Y. 233; Gif-
ford v. Corrigan, 117 N. Y. 257.
3 Townsend v. Rackham, 143 N. Y.
$ 613.] THINGS. 799
the person who obtains the promise, must be borne by the third
person in order that he shall be allowed a benefit under it."
Of the different qualities of privity there have been recog-
nized privity to the stipulation, i. e., where the party obtaining
the promise was so related to the third person claiming as to
be in some sense termed his agent,” though this relation may
not be disclosed, or one may be so interested in the subject-mat-
ter that any contract in relation to it must inure for his benefit.
This may be called privity in estate.
Privity in blood, or near relationship, has sometimes been
recognized as sufficient, but this in itself is not sufficient un-
less that relationship is one where there is some obligation
upon the person contracting owing to the third person in whose
favor he secures the promise.” -
SEC. 613. Assignability.—Every contract gives to One person
a right and imposes upon another an obligation.
It may be an agreement to sell and convey property, or to
furnish materials and services, or to perform personal services,
but in all cases it contemplates the doing by some person for
another of some specified act. It “conveys an interest merely
in action,” and creates what is called a chose in action.* \
Our law favors trade and commerce, and consequently most
of that which is embraced within the term “property " may
be sold and transferred at the will of the owner.” Indeed, the
right to sell is one of the essential attributes of property."
On the other hand, a contract is made between two definite
parties, the one agreeing to do for the other; and unless ex-
516; Coleman v. Huyler, 83 Hun, 548;
33 N. Y. S. 360. In a late case in New
York it is held that a promise by
grand-parents to parents that if the
name of the plaintiff was changed the
grand-parents would pay $500, or loan
$500 to plaintiff, is upon good consid-
eration, and plaintiff is sufficiently in
privity to maintain action. Babcock
v. Chase, 92 Hun, 264.
! See articles in 10 Harv. Law Rev.
180.
4 See 2 Cooley's Blk. (4th ed.) 441,
note.
5 “Circulation and transfer of prop-
erty are the life and Soul of trade,
and must not be checked in any in-
stance. There is no reason for Con-
fining the power of assignment to
the two instruments which I have
mentioned [bills of exchange and in-
surance policies], and I will show
you other cases in which courts have
allowed it.” Per Buller, J., in King’s
Bench Court. Master v. Miller, 4 T. R.
342 [1791]. -
*This is one of the grounds of Law-
rence v. Fox, supra.
* Marston v. Bigelow, 150 Mass. 45,
5 L. R. A. 43.
6 Wynehamer v. People, 13 N. Y.
378. A ,
51
800 THING.S. [$ 613.
pressly provided for in the contract, or unless the contract is
of such a nature that the law implies assignability or negotia-
bility, it does not rest in the power of either party to intro-
duce a new person into the agreement, so that, except in the
case of contracts negotiable by the law merchant, choses in
general were not assignable under the common law.
Assignability and negotiability are terms of different import.
The former includes merely what may be transferred to an-
other, while the latter designates such contracts as may be
transferred to a third person, with the additional right in that
third person to sue in his own name upon the contract."
Prof. Dicey in his work on Parties to Actions gives as his
sixth rule that “the right to bring an action cannot be trans-
ferred or assigned,” and states that this rule is involved in the
maxim that a chose in action is not assignable. The rule is
stated by him quite too broadly,” as modified by his subsequent
text.” A more accurate statement is that of Broom: “It is,
indeed, a well-known rule of law, that a chose in action, e.g., a
debt, cannot in general be assigned so as to vest in the assignee
a right of action upon it in his own name, nor do causes of ac-
tion already accrued run with the property in goods or deeds.” “
It is important to note that Prof. Dicey in his text says that
the term chose in action is used rather indefinitely,” Sometimes
for the thing to be recovered by action, e.g., damages for a
breach of contract or tort, and sometimes for the right to re-
cover such damages. For the purpose of the present rule, it
may perhaps be best defined as a claim to be asserted by an ac-
tion at law.”" It will thus be seen that he extends the mean-
ing of the word chose far beyond its definition as given by
1 See Negotiable Instruments. A formed and compensation due, the
purchaser of a chose in action, non-
negotiable, takes it subject to all
equities of the Original parties. A
second or subsequent assignee takes
it subject to all equities existing be-
tween any prior assignor and as-
signee. Sutherland v. Reeve, 151 Ill.
393. See note in 5 L. R. A. 620, Sub.
Hill v. Hoole.
2 Gruber v. Baker, 20 Nev. 453; 9
L. R. A. 302. After a contract is per-
right to recover the price may be as-
signed. Sloan v. Williams, 138 Ill. 46.
3 This text is a fine presentation of
the English law of the subject.
4 Broom’s Maxims, 473.
5 This is a good illustration of the
confusion likely to follow a miscon-
ception of a fundamental fact, in
this case the meaning of “chose.”
6 Dicey on Parties, *67.
§ 613.] THINGS. 801
Blackstone—farther even than its more extended meaning as
established in American law."
While it was a rule of the ancient law that choses in action
were not assignable, after the introduction of equity and the
law merchant the rule had very slight operation, and affected
the form of procedure rather than the rights of parties.
The original objection to assignability was based on the
ground of champerty and maintenance, which if carried to the
extreme would allow a traffic in lawsuits, by which persons
of very limited means might be obliged to engage in a contest
with persons of unlimited power and influence.
The reason of the rule, however, never obtained in courts of
equity, and was held to apply only to personal actions in law
COurts. -
As has been hinted, the reasons upon which the common-law
rule denying the assignability of choses in action was based
were never very generally approved, and courts of equity never
refused to recognize and protect the rights of parties arising
under the purchase and assignment of causes of action which
were not merely personal.”
And in the process of time the
1 It should be borne in mind that
the term “chose?” in the English law
does not embrace mere personal torts,
but includes only contracts and torts
growing out of contracts, or torts
connected with contracts or personal
property. Ante, p. 125. “But conced-
ing that a tort be one of the elements
that go to make up this cause of ac-
tion, it will be found to be assign-
able. It will be seen to be of that
class of torts the right of action for
which would survive to the personal
representatives of the claimant; and
‘the power to assign and to transmit
to personal representatives are con-
vertible propositions.” Zabriskie v.
Smith, 3 Kern. 333. And further, it
is, within the decisions both before
and since the Code, of a nature that
was formerly assignable in equity,
and is now assignable at law. In
McKee v. Judd, 2 Kern. 625, it is held
‘that demands arising from injuries
strictly personal (whether arising
from tort Or Contract) are not assign-
able, but that all others are.’ 3 Kern.
333–335, 336; 15 N. Y. 432.” Byxbie v.
Wood, 24 N. Y. 607–612. See Ackley
v. N. C. C. Ry. Co., 171 Ill. 100, for
discussion and citation.
21 Cranch, App. 423. “It is laid
down in our old books that for avoid-
ing maintenance a chose in action
cannot be assigned or granted over to
another. Co. Lit. 2144, 2660; 2 Roll.
45, 140. The good sense of that rule
seems to me to be very questionable;
and in early as well as modern times
it has been so explained away that it
remains at most Only an objection
to the form of the action in any
case. In 2 Roll. Abr. 45 and 46, it is
admitted that no obligation or other
deed may be granted so that the
writing passes; but it is said that the
grantee cannot sue for it in his own
name. If a third person be permit-
802 THINGS. [$ 613.
rules of equitable assignment were recognized in the courts
of law to the extent of allowing the assignee to bring a suit,
but compelling him to bring it in the name of the assignor,
giving security." £
This is simply preserving the shadow of the old rule while
denying its substance; and it is now well understood that con-
tracts may be made assignable by the original parties if they
see fit, even though they may not be negotiable in their char-
acter, and such seems to have been the rule of the law mer- .
chant as recognized in England from the earliest times.”
There is a difference between the right to substitute parties
and the right to assign a cause of action growing out of a
breach of contract for personal services, and it is well settled
that after the breach a cause of action may, under some cir-
cumstances, be assigned.
So where the contract relates to the keeping or disposition
of property, the subject of the contract being the subject of
sale, the rights of the parties under the contract may be as-
signed.”
A cause of action against a common carrier growing out of
the loss of a package may be assigned." Bills of lading which
represent the property may be sold.”
So the contract existing between a stockholder and a corpo-
ration which constitutes him a shareholder may be assigned by
the assignment of the shares of stock." -
The result of the authorities is, first, that wherever the sub-
ject of the contract is matter which may be a subject of sale,
the contract may be assigned with the same facility with which
the thing itself may be sold;" second, that where the subject
of the contract is the performance of personal services, in most
cases after the breach or performance, such contract, the cause
ted to acquire the interest in a thing,
whether he is to bring the action in
his own name or in the name of the
grantor, does not seem to me to af-
fect the question of maintenance.”
Master v. Miller, 4 Term Rep. 340.
* Ransom. v. Jones, 1 Scam. 291;
Palmer v. Merrill, 6 Cush. 282; 52
Am. Dec. 782; Dicey on Parties, *71.
*1 Cranch, App. 427.
3 People v. Tioga, 19 Wend. 73;
Blackwood v. Brown, 32 Mich. 104;
McKee v. Judd, 2 Kern. 622.
4 Merrill v. Grinnell, 30 N. Y. 594.
5 Bank v. N. Y. & L. E. & W. Ry.
Co., 106 N. Y. 195; National Bank v.
Dearborn, 115 Mass. 219.
6 Mech. Hank V. N. Y. & N. H. R. R.
Co., 13 N. Y. 600.
7 Wall v. De Nutiewicz (Ct. App. D.
C. 1896), 24 Wash. L. R. 408.
§ 614.] THINGS. 803,
of action arising, may be assigned in such a manner as to vest.
the beneficial interest in the assignee, even though a tort may
be involved.
So that while personal contracts cannot be changed before
breach, most choses in action may be assigned. But causes of
action for mere personal torts are not assignable."
The rule of the codes which provides that all actions shall
be brought in the name of the real party in interest have wisely
dispensed with the shadow and allowed the substance to con-
trol.” -
SEC. 614. Agency.—So soon as one's business reaches any
considerable magnitude it becomes indispensable that others
are associated to co-operate in its transaction.
These associations give rise to a body of rules which govern
the liability of the parties to them.
We have heretofore noticed association under the guise of a
corporation, and have mentioned another form of association
termed “partnership,” which constitutes in another sense a
relation of agency; but agency is not the principal object of
the contract of partnership, and the relation of agency in that
case does not arise by employment, but as an incident to the
partnership association. - -
Under the topic “Agency’ it is designed to state the princi-
ples governing a relation which arises out of the performance
of acts for and in behalf of another, where the relation is not
one of equality, but of employment, and also to distinguish it
from another somewhat similar relation, where the person oc-
cupying the subordinate position performs labor or services for
the employer, a relation which has heretofore passed under the
name of “master and servant.” These relations differ in the
following particulars: -
The agent performs the act as the act of the principal in re-
lation to some collateral matter.
The servant performs some service for the principal.
I Only by reducing such a cause to action may be assigned after verdict
judgment does it become a debt or a rendered. Zogbaum v. Parker, 55
chose. Hunt v. Conrad, 48 Minn. 557; N. Y. 120. ‘.
14 L. R. A. 512. It has been held that 2 Zabriskie v. Smith, 13 N. Y. 333;
where the code provides that an ac- Andrews' Stephen's Pl., 32; Ackley
tion will survive after verdict, such v. N. C. C. Ry. Co., 171 Ill. 100.
804. THINGS.
[$ 614.
The agent always engages in a transaction with a third per-
son. The mere servant, as such, does not."
The relation of agency is so ancient and common that it has
long since passed into a maxim of the law that “he who does
an act through the medium of another is in law considered as
doing it himself.” r
An agent is one who acts on behalf of another (who is termed
the principal), being theretofore authorized to act, or, profess-
ing to act in behalf of another, his act is ratified and adopted
by that other, or one who, though not professing to act for an-
other, has actually been engaged to perform an act and does it
without disclosing his principal.
Mode of Appointment.—From this statement it appears that
the relation of agency may arise by appointment or by conduct,
Ż. e., direct employment, or even by voluntary officious inter-
meddling * followed by ratification; but in the latter instance
no act can be the subject of ratification which was not in the
first instance avowedly performed on behalf of another" who
was in existence at the time the act was performed.”
1 “An agent, properly speaking, is
one who enters into an employment
for the purpose of bringing the em-
ployer into legal relations with a
third party.” Anson on Contracts
(2d Am. ed.), 439; Smith's Merc. L.
159.
2 Qui per alium facit per seipsum
facere videtwr. Broom's Leg. Max.
816.
8 If one assumes the character of
agent, though there be no employ-
ment, he is bound by all the inci-
dents of that relationship. 2 Kent's
Com. 616; Nelson v. Mackintosh, 1
Stark. 237; Dennis v. McCagg, 32 Ill.
429; Watson v. Union Steel Co., 15
Ill. App. 509; Casey v. Casey, 14 Ill.
192; Halberg v. Nichol. 149 Ill. 249.
4 Stark v. Starr, 94 U. S. 477. A
subsequent assent is equivalent to an
original authority. Clark v. Van
Remsdyk, 9 Cranch, 153; Hoosao Min.
Co. v. Donant, 10 Colo. 529. Ratifica-
tion is not a new contract and a new
consideration is not necessary to sup-
port it. T)rakeley v. Gregg, 8 Wall.
242; Grant v. Beard, 50 N. H. 129;
Com. Bank of Buffalo v. Warren, 15
N. Y. 577. Ratification of a part of
a contract is a ratification of the
whole. Gaines v. Miller, 111 U. S.
395; Henderson v. Cummings, 144 Ill.
325; Benedict v. Smith, 10 Paige Ch.
126; Maddux v. Bevan, 39 Md. 502.
The contract must be ratified as
made. Rogers v. Holden, 142 Mass.
196. To bind the principal the ratifi-
cation must be with full knowledge
of all material facts. Bennecke v.
Conn. Mut. Ins. Co., 105 U. S. 355;
Broctor v. Tows, 115 Ill. 138; Craig-
head v. Peterson, 72 N. Y. 279. Ratifi-
cation will be presumed from silence
of the principal after he has had
notice. Field v. Farrington, 10 Wall.
141; Alexander v. Jones, 64 Iowa,
207. But if an unauthorized act is
* See Mechem on Agency, §§ 124, 125.
§ 614.] THINGS.
805
On the other hand, where there is an actual employment of
an agent, it is immaterial, so far as binding the principal is con-
cerned, whether the agent acts in his own name or the name
of his employer." He may sue or be sued on the contract, the
only difference being in the mode of proving the relation of
agency between the third person and the undisclosed principal,
and the right to hold either or both principal and agent.”
There is still another way in which the relation may be made
to appear. Wherever one clothes another with apparent au-
thority or acts in such a way, either during a single transaction
or through a long course of dealing, that an ordinarily prudent
man would be led to suppose that the relation of agency exists,”
and this apparent authority is acted upon by a third person, the
relation of agency will be held to exist and the alleged principal
will be bound without regard to the secret understanding. It
is not material, in such a case, whether he intended to be bound
or not.” -
In certain cases it is essential that the appointment shall be
by some act of equal dignity with the act which is to be per-
formed by the agent.” Thus, a power of attorney to execute
a deed or solemn instrument, which is only good when under
done by a stranger in the name of agent, but what authority was a
another, the latter will be bound
only by affirmative ratification.
Ward v. Williams, 26 Ill. 451. The
act must have been done for the
brincipal. Beveridge v. Rawson, 51
Ill. 504; Hamlin v. Sears, 82 N. Y.
327. The assent must be manifested
in an unequivocal manner. Keeler
w. Salisbury, 33 N. Y. 648.
1 Tuthill v. Wilson, 90 N. Y. 423.
2See infra, “Undisclosed prin-
cipal,” p. 814; United States Bank v.
Dandridge, 2 Wheat. 64; Hoyt v.
Thompson, 19 N. Y. 208.
*This is equally true of a corpora-
tion. Olcott v. Tioga R. R. Co., 27 N.
Y. 546, infra.
4 Collins v. Cooper, 65Tex. 460; Gal-
linger v. L. S. Traffic Co., 67 Wis. 529;
Johnson v. Christian, 128 U. S. 374.
The question is not what authority
was intended to be given to the
third person dealing with him jus-
tified in believing was given him.
Griggs v. Selden, 58 Vt. 561. “But
all of the elements of an estoppel
must be present. There must be con-
duct calculated to mislead, and it
must be under circumstances which
justify the claim that the alleged prin-
cipal should have expected that the
representations would be relied and
acted upon; and further, it must ap-
pear that they were relied and acted
upon in good faith to the injury of an
innocent party. Mechem on Agency,
Sec.S. 85, 86; S. T. & H. R. R. Co. v.
Chappell, 56 Mich. 190.” Clark v.
Dillman, 108 Mich. 625. A company
cannot hold out one as its agent and
then disavow responsibility for his
acts. Creswell v. Lanahan, 101 U. S.
347.
5 Ingraham v. Edwards, 64 Ill. 526.
806 THINGS, [$ 614.
seal, must be in writing and executed with the formalities.
which would be required in case the principal acted for him-
self." This rule, however, is not adhered to where the signa-
ture is affixed by the agent in the presence of the principal
and at his request, for there the agency only extends to the
mere act of signing, the conveyance being made by the prin-
cipal.” Nor does it apply to a contract to sell land by an agent,
although such a contract must be in writing in order to com-
ply with the statute of frauds.” - -
Who May be a Principal.— In order to have the capacity of a
principal or employer of an agent, the person must be sui juris
and compos mentis," but the converse of this proposition does.
not hold good in its entirety.
Who May Act as Agent.—It is not essential that an agent
should possess the complete capacity to contract in all matters.
Thus, it is not essential that they be entirely sui juris; " nor
would it in all cases affect the liability of the compos mentis
principal and other contractor that the agent who had actually
executed his trust was shown to have been non compos menţăs.
A married woman or an infant may act as an agent.
The several species of agency are classified as to the nature of
the employment, and are distinguished by various names, e.g.,
auctioneer, attorney, proxy, delegate, factor, broker, commis-
sion merchant, bailiff, etc.
The character of agency as affecting the scope of employ-
ment or orbit of service is designated as universal general and
special. -
1 Watson v. Sherman, 84 Ill., 263;
Dickerman v. Ashton, 21 Minn. 538.
The addition of a seal where un-
necessary will not render it neces-
sary that the Original authority be
under seal. Worrall v. Munn, 1 Seld.
239.
2 Emerson v. Providence Hat Mfg.
Co., 12 Mass. 237; Gardner v. Gard-
ner, 5 Cush. 483; 52 Am. Dec. 740.
8 McWhorter v. McMahan, 10 Paige
Ch. 386.
4 Dexter v. Hall, 15 Wall. 9. An
infant cannot appoint an agent.
Armitage v. Widoe, 36 Mich. 154;
Tetrow v. Wiseman, 40 Ind. 155.
Neither at common law could a mar--
ried woman. Phillips v. Burr, 4 Duer,
113. Within the scope of the part-
nership business each partner is the
agent of all. Andrews v. Congar
(U. S.), 26 L. Ed. 90. Each partner
is a principal and may appoint an
agent to act for all. Payton v. Baker,
62 Iowa, 704; Durgin v. Somers, 117
Mass. 55; Carley v. Jenkins, 46 Vt.
721.
5 Brown v. Hartford Fire Ins. Co.,.
117 Mass. 479. Wife may act as
agent. Felker v. Emerson, 16 Vt. 653.
§ 614.] THINGS. 80'ſ
Species of Agents.-In common speech it is understood that
an attorney' is a lawyer; but in law, or legal phrase, this is
not always the case.
An attorney is one who is appointed as any other agent is,
but ordinarily the name is given to one who is given a power
to perform more solemn acts in the place and stead of the
principal, and, in the sense of an attorney who acts in the
place of a principal, need not be a lawyer.”
A proxy is one who is appointed to act in the place of a
principal, but not generally to contract in every-day affairs.
The term “proxy" is usually applied to one who attends meet-
ings and votes. -
Factors, brokers and commission merchants are all forms of
agents connected with traffic in merchandise.
A broker is one employed to make bargains or contracts be-
tween others, and in this sense he acts as an intermediary, and
to a certain degree is an agent of both.”
A commission merchant is one to whom goods are consigned
to sell in the name of the principal, receiving a commission for
their sale.
A factor is one to whom goods are consigned for sale, with
power to sell in his own name without disclosing the name of
the owner. The owner, therefore, trusts him with his goods.
Pſe may sell in his own name, and has a lien on the goods con-
signed to him.
Among merchants it is usual for a factor to advance money
on the goods; hence, the mutual accommodation accounts for
the mutual confidence.
The principal contracts upon the faith of the credit of the
factor, and obviously it is no answer to a creditor of a factor
to whom such goods have been sold on credit, and who seeks a
set-off, that they were in fact the goods of another.
A supercargo is a factor who is sent with goods for the pur-
pose of disposing of them.”
1 See People v. May, 3 Mich. 606.
2 Hall v. Sawyer, 47 Barb. 119. The
nature of the employment should
Control. If one employs a lawyer to
perform services of a nature not con-
nected with his office as an attorney
and counselor, there should be no
privilege as a witness, nor should
any other incident of the relation of
client and attorney be allowed.
3 See Ewell’s Evans’ Agency, pp. 5–
9; Pott v. Turner, 6 Bing. 702; Hig-
gins v. Moore, 34 N. Y. 417.
41 Beawes' Lex Merc. (6th ed.) 47.
308 THINGS, [$ 614.
Another form of agency is called del credere, and seems to
be distinguishable from other forms only by the presence of a
stipulation that the agent shall guarantee the collection of the
accounts." Such an agency must always arise by express con-
tract and can never be implied.” - -
Character of Agency.— General agency is of two classes:
(a) Universal agency, authorizing the agent to transact any
and all of the principal’s business; (b) restricted general agency,
where one is authorized to transact all business of a particular
kind.”
A special agent, on the other hand, is authorized to act only
in a particular transaction. - -
It is a matter of difficulty in many cases to determine whether
an agent is general or special. As regards the principal and
third parties, the distinction is important, but it is frequently
necessary to decide, in order to determine the principal's liabil-
ity, not only whether the authority was general or special, but
whether the agent's acts were within the apparent scope of
his authority.”
One dealing with a professed agent risks his being such, and
is bound to know the extent of his authority.” But if one is
apparently an agent, a third person dealing with him is not
bound to inquire whether there are secret limitations, unless
he is put upon inquiry by facts which come to his knowledge.”
Whether an agent is general or special is always a question
of fact." The usages and customs of the business in which
the parties are engaged must always constitute an important
1 Benj. Sales, $598; Burton v. Good-
speed, 69 Ill. 237. -
2Wittkowskiv. Harris, 64 Fed. Rep.
719.
3 See Mechem on Agency, § 6; Keith
w. Herschberg Opt. Co., 48 Ark. 138;
Gulick v. Grover, 33 N. J. L. 467; 97
Am. Dec. 728.
4 Ewell's Evans on Agency, 2, 102;
Mech. Bank v. N. Y. etc. R. Co., 13
N. Y. 599, 632. In most cases the dis-
tinction only throws back one step
the process of investigation. John-
son v. Milwaukee & W. Inv. Co., 46
Neb. 480.
5 Sanford v. Handy, 23 Wend. 260;
Owings v. Hull, 9 Pet. 607; Mechem
on Agency, §§ 276, 283.
6 Wheeler v. McGuire, 86 Ala. 398;
2 L. R. A. 808. See cases in next note.
7 Dickinson Co. v. Miss. Valley Ins.
Co., 41 Iowa, 286. The general offi-
cers of a business Corporation, e. g.,
its manager, are general agents. And
one dealing with such an officer in a
matter relating to its business opera-
tions, and not involving its corporate
powers, has a right to rely on his
apparent authority, and Cannot be
charged with notice of by-laws re-
*
§ 614.] THINGS. 809
factor in the question, and will generally furnish the test of
the character of agency."
Scope of Authority."—The character of the agency, whether
it be universal general or special, indicates the orbit within
which the agent is to act. The scope of authority is a differ-
ent matter, and relates rather to the various specific acts by
means of which the business authorized to be transacted may
be conducted; in other words, is the means by which the end is
sought to be accomplished legitimately within the authority of
the agent in a given case, irrespective of whether the agency
be general or special.”
Bearing in mind that an agency is instituted for the purpose
of transacting business, it is apparent at the outset that the
nature of the business must of itself impliedly limit the scope
of authority to those things naturally germane to and usual or
reasonably necessary to accomplish the object; 4 and in apply-
ing these tests one may reason in analogy to the reasoning of
Chief Justice Marshall in McCulloch v. Maryland" upon the
stricting his authority. Johnson v.
Milwaukee & W. Ins. Co., 46 Neb. 480.
A bank teller who, to the knowledge
of the officers of the bank, is in the
habit of certifying checks of custom-
ers, is a general agent for that pur-
pose, and the bank is bound by his
acts. Farmers' & Merchants’ Bank
v. Butchers’ & Drovers’ Bank, 16
N. Y. 125; Phoenix Ins. Co. v. Stocks,
149 Ill. 335.
1 Goodenow v. Pyler, 7 Mass. 36;
Nelson v. Cowing, 6 Hill, 336; Phillips
v. Moir, 69 Ill. 156; Cox v. Midland
Ry. Co., 3 W. H. & G. 278.
2.In Phenix Ins. Co. v. Stocks, 149
Ill. 335, an agent of the insurance
company had authority only to Se-
cure insurance, receive premiums
and issue policies, and not to bind
the company in respect to adjust-
ment of loss; and in an action by a
policy-holder against the company it
was held that notice and demand on
the agent was notice and demand on
the company. The court said: “Per-
Sons dealing with an agent cannot
know, nor are they required to know,
the limitations upon his power to rep-
resent his principal. The company
is bound by the acts of its agent in
the exercise of powers within the
apparent scope of his authority, un-
less limitation upon such powers
is brought to the notice of the as-
Sured.”
3 Doan v. Duncan, 17 Ill. 272; But-
ler v. Maples, 9 Wall. 766.
4 Id.; Shaw v. Stone, 1 Cush. 243.
54 Wheat. 414, Precisely as it was
argued in McCulloch v. Maryland,
that a power without the means of
accomplishing it would be a nullity,
So it is laid down that every agency
carries with it:
“(A.) Powers prima facie incident
to every ascertained authority.
“(a) All the necessary and usual
means of executing the authority
with effect.
“(b) All the various means justi-
fied by the wsages of trade.
810 THINGS. [$ 614.
power of the United States to accomplish an object by the in-
Corporation of a bank. f
For instance, a bank' is incorporated for the purpose of con-
ducting a banking business. It appoints its general agents,
and they need no further authority than their general appoint-
ment to transact the ordinary affairs of the company. But an
Officer indorses, in the name of the bank, a note for the accom-
modation of another bank or an individual.” This is beyond
the scope of the ordinary business of the bank,” perhaps beyond
its power, because ultra vires its object. Manifestly, such an
act is beyond the scope of the authority of the agent. So in any
case, whether the agency be general or special, the authority
to act must be circumscribed within the usual and ordinary lim-
its of the business. &
In case of individuals, by an appointment as attorney in fact,
to transact all business in the principal's name which the prin-
cipal might transact, the attorney in fact may stand in the
place of the principal for all matters of business; but even
there it will not do to say that he might contract that the
principal should marry, or enter into any such extraordinary
contract as is not recognized in the affairs of men as proper to
be transacted through an agent.” As to corporations,” it is ob-
vious that their power to transact business circumscribes the
scope of an agent's authority; and again, that the scope of au-
thority may be limited by the character of business the agent
is appointed to transact.
Authority is distinguished from instructions, although courts
and text-writers are not always sufficiently guarded in the
choice of terms.
“(B.) These are to be ascertained
by interpretation and construction.
“(a) When the authority is given
by a formal instrument.
“(b) When the authority is given
by an informal instrument. -
“(c) When the authority arises
from implication.
“The ordinary scope may be lim-
ited or extended:
“(a) By parol evidence: (1) Of cus-
tom and usage. (2) In other cases.
“(b) By conduct of principal.”
While a violation of instructions will render
Ewell's Evans on Agency, p. 142 et
seq. See especially Mechem on
Agency, Book 2, ch. 1, §§ 276 et seq.
1 The cashier of a bank is a special
agent. Elliott v. Abbott, 12 N. H.
549; 37 Am. Dec. 227. If incorporated,
the directors are its general agents.
2 Id.
8 Gulick & Holmes v. Grover, 33 N.
J. L. 467; 97 Am. Dec. 728.
4 Gulick v. Grover, supra.
5 Elliott v. Abbott, 12 N. H. 549;
37 Alm, Dec. 227.
$614.] THINGS. 811
the agent liable to his principal, it will not affect the binding
quality of acts performed unless the third person has knowl-
edge of the limitation as to the manner of acting."
The Duty of the Agent.— The first duty of an agent is obe-
dience to instructions; * and although he may bind his principal
within the apparent scope of his authority,” even though he
acts contrary to his instructions, he will generally render him-
self liable to his principal for any loss occasioned by his mis-
conduct.*
Absolute fidelity and loyalty to the interest of his principal
is likewise a requirement of the law.”
in such cases between the requirements of the moral law and
the municipal law.
One cannot serve two masters unless it be thoroughly and
distinctly understood by all parties concerned." Neither may
the agent become in any manner interested in a transaction of
his principal."
There is no distinction.
1 The act of an agent within his
apparent or real authority, but Con-
trary to his instructions, will bind
his principal in all cases, provided
the person dealing with such agent
knew of such prior acts indicating
authority, and dealt with the agent
in reliance thereon. Johnson v. Mil-
waukee & W. Inv. Co., 46 Neb. 480.
The court in this case said: “It is
argued in this case that where One
deals with a corporation he is bound
to take notice of its charter and by-
laws, and this has received some Sup-
port in the decisions.” But in Rath-
bun v. Snow, 123 N. Y. 343, cited and
quoted in the former case, the court
says “that third persons may act on
the apparent authority conferred by
principal upon agent and are not
bound by secret limitations, qualify-
ing verbal appointment; that the de-
fense based upon the limitation in
the by-laws of the company, of which
the plaintiff had no knowledge, Can-
not be sustained.” See Sage v. Shep-
ard & Morse Lum. Co., 39 N. Y. S. 449;
Phenix Ins. Co. v. Stocks, 149 Ill. 335;
Mut, Life Ins. Co. v. Kirchoff, 133 Ill.
368. Where one attempts to hold
principal for acts of agent he must
be held to the exercise of good faith.
He cannot collude with agent to de-
fraud principal, or to stretch supposed
authority of agent to possess himself
of the property of principal without
consideration. Mayer v. Moore, 42
Atl. Rep. 721. See cases ante, p. 808.
*Coker v. Ropes, 125 Mass. 577.
3 Johnson v. Milwaukee & W. Inv.
Co., 46 Neb. 480; Breen v. Miehle
Printing Press & Mfg. Co., 8 Pa. Ilist.
Rep. 151; People's Bldg., L. & S. Ass’n
v Keller, 50 S. W. Rep. 183; Edgerly
v. Cover. 77 N. W. Rep. 328.
4 Whitney v. Merchants’ Union Ex.
Co., 104 Mass. 152.
5 Jackson v. Pleasonton, 29 S. E.
Rep. 680; Mechem on Agency, 454.
The principal is entitled to all the
knowledge and skill of the agent.
Norris v. Taylor, 49 Ill. 17.
6C., W. & Z. Ry. Co. v. Iliff, 13 Ohio
St. 250. u -
7 Keech v. Sanford, Sel. Cases Ch.
61; May v. Le Claire, 11 Wall. 236;
Davis v. Hamlin, 108 Ill. 39.
812 THINGS. [$ 614.
It has become a maxim of the law, particularly applicable to
agency, that no man shall be allowed to act where his interest
and integrity are in conflict."
The agent may not make a secret profit, and it is immaterial
what form the transaction takes.”
Uberrima fides is the rule, and a court of conscience will
always grant relief, on behalf of the principal against the un-
faithful agent, according to the conception the particular court
may have of good faith, morality and fair dealing.”
It is in such cases, strictly speaking, that a court of chancery
is called a court of conscience; * and even as in ancient times it
was said that equity was like the chancellor's foot, in that it
differed with different men, so, necessarily, the extent of relief
must depend entirely upon the character and qualification of
those who occupy the judicial bench.
There are chancellors whose moral sense may be shocked by
the unfairness of a transaction, while other chancellors, whose
sense of fairness or conceptions of morality and good faith are
different, may see nothing in the transaction to criticise.
High-sounding phrases of morality may be followed by a de-
cision which releases the unfaithful agent who has successfully
deceived his principal. This result is merely the natural con-
sequence of the necessity of leaving the application of the law
to men whose conceptions of right and wrong are less keen
I Cases, p. 811, n. 7.
2 The rule is aimed at a secret
profit. It does not amount to an in-
hibition against a fair contract be-
tween principal and agent allowing
a liberal profit. Ruckman v. Berg-
holz, 37 N. J. T. 43; Kerfoot v. Hy-
man, 52 Ill. 512; People v. Overyssel
Tp., 11 Mich. 222; Green v. Knoch, 92
Mich. 26; Switzer v. Skiles, 3 Gilm.
529; 44 Am. Dec. 723.
8 Buckner v. Calcote, 28 Miss. 466;
Ferguson v. Dent, 24 Fed. Rep. 412.
If an agent seeks to uphold a trans-
action between himself and his prin-
cipal, or a principal to avoid a trans-
action between himself and his agent.
the burden is upon the agent to show
that he gave to his principal the
same advice in the matter as an
independent disinterested advisor
would have done; and that he made
a full disclosure of all he knew con-
cerning the property, and that the
principal knew with whom he was
dealing and made no objection, and
finally that the consideration was
fair and just. Bank of Ohio v. Tor-
rey, 9 Paige, 649; Comstock v. Torrey,
57 Barb. 453; Brooks v. Barry, 2 Gill,
83; Moore v. Mandelbaum, 8 Mich.
433; G., C. & S. Ry. Co. v. Kelly,
77 Ill. 434; Condit v. Blackwell, 22
N. J. Eq. 481.
4 Buckner v. Calcote, supra.
§ 614.] THINGs. 813,
than those of others."
settled.”
A purchase by an agent from his principal in the form of a
negotiation between himself and his principal is not absolutely
Void, but it is prima facie fraudulent, and voidable at the in-
stance of the principal.” - -
It devolves upon the agent, whenever the transaction is
questioned by the principal or any one representing him, to
show by clear and satisfactory evidence that the transaction
was fair, and that he made a full disclosure of every material
fact which might affect the judgment of his principal.
A purchase by the agent, taking the form directly or indi-
rectly of a purchase from himself, as the purchase of an exec-
utor at his own sale, is void, because the agent cannot be both
the seller and the purchaser. Such a transaction is absolutely
Void.4 .* -
A Third Duty.— It is the duty of an agent to keep an ac-
count of his stewardship.” In the absence of a strict account
every presumption will be against him. It is his duty, within
ordinary and customary periods, to submit to his principal this
account," and if, by contract or according to custom, there are
But the rules of law are simple and well
Compare Tyler v. Sanborn, 128
Ill. 142; Ross v. Payson, 160 Ill. 349,
and cases cited, with Richards v.
Cline, 176 Ill, 431.
2 Equity looks with suspicion upon
transactions between principal and
agent where there is opportunity to
make an undue profit. Cook v. Ber-
lin Mills, 43 Wis. 433: Eldridge v.
Walker, 60 Ill. 230; Hughes v. Wash-
ington, 72 Ill. 84; Francis v. Kirker,
85 Ill. 190. The rule is not based
upon the existence of actual fraud,
but upon the public policy of pre-
venting any temptation to fraud.
Mechem, Agency, secs. 455–57, 461;
Cotton v. Holliday, 57 Ill. 178; (void-
able) G., C. & S. R. Co. v. Kelly, 77
Ill. 434; Miles v. Wheeler, 43 Ill. 127;
Tyler v. Sanborn, 128 Ill. 147.
3 People v. Township Board, 11
Mich. 222; Taussig v. Hart, 58 N. Y.
425; Tewksbury v. Spruance, 75 III.
187; Ross v. Payson, 160 Ill. 349;
Mechem on Agency, Sec. 462.
4 Schenck v. Dart, 22 N. Y. 420;
Michoud v. Girod, 4 How. 557; Da-
voue v. Fanning, 2 John. Ch. 226;
Thornton v. Irwin, 43 Mo. 153. If
One who has accepted an agency to
buy for another buy for himself, he
will be treated as a trustee. Reid
v. Stanley, 6 Wall, 369. See Brown
v. Cowell, 116 Mass. 461.
5 Keighler v. Savage Mfg. Co., 12
|Md. 383; 71 Am. Dec. 600. It is his
duty to keep principal’s goods and
his own separate. If they cannot be
distinguished, all will be held to be-
long to principal. Marine Bank v.
Fulton Bank, 2 Wall. 252.
6 Clark v. Moody, 17 Mass. 145;
Haas v. Damon, 9 Iowa, 589; Lang-
ley v. Sturtevant, 7 Pick. (Mass.) 214.
814. THINGS. [$ 614.
settled periods for accounting, he is liable to an action for an
accounting, in law or in equity, for failure to do so, without
any further request; but if according to the custom there is
no fixed time, or according to the course of dealings it has
been the custom to request an account, the demand for an ac-
count should precede the bringing of a suit."
Mode of Contracting.—Where an agent transacts business
with a third person it is obviously his duty to disclose his agency;
and where he enters into a solemn agreement, the body of the
agreement itself should indicate the parties between whom the
contract is made, and if, instead of so doing, it appears that
the agent himself is one of the contracting parties, it does not
avail to release him that he subsequently show that in fact he
was contracting merely as agent. It is not sufficient under all
circumstances that he subjoin to his name, which he signs in
proper form, a clause or sentence indicating that he is the
agent for another, for this latter may be merely descriptio
personae, and constitutes only an identification of the individual.”
The contract should be executed in the name of the princi-
pal, and the principal’s name signed to it, with the addition of
words indicating that it is by procuration or by an agent.”
Consequences of Won-disclosure.—If the agent would avoid
personal liability he must disclose the fact that he is acting,
not as principal, but in the character of agent. If in fact there
is an actual agency or authority, but the fact of agency is un-
disclosed, then, under ordinary circumstances, the other con-
tracting party has the right to show the fact of agency in order
to bind the principal; but in such cases the existence of the
agency actually shown will not relieve the agent from liabil-
ity,” but it allows a resort to either by the third party.
1 Bedell v. Janney, 4 Gilm. 193;
Armstrong v. Smith, 3 Blackf. (Ind.)
251; Heddens v. Younglove, 46 Ind.
212. See “Actions of Account.”
2 Post v. Pearson, 108 U. S. 420.
3 Id. As to the mode of signing
negotiable paper, see that topic.
4 He is liable as the real principal.
Bickford v. First Nat. Bank, 42 Ill.
238; 89 Am. Dec. 436; French v. Har-
din County, etc. Co., 67 Ill. App. 269;
Baldwin v. Leonard, 39 Vt. 260; 94
Am. Dec. 324; Beymer v. Bonsall, 79
IPa. St. 298; Wheeler v. Reed, 36 Ill.
81; Welch v. Goodwin, 123 Mass. 71;
Newman v. Gruff, 101 N. Y. 63;
Mitchell v. Beck, 88 Mich. 342;
Mackey v. Briggs (Colo.), 26 Pac. Rep.
131. Even though the party with
whom he contracts knows that he is
acting only as agent for some undis-
closed principal. Wilder v. Cowles,
§ 614.] TELINGS. 815
With regard to the right of the third party to look to the
principal when discovered, there can be no doubt."
It has been a question of considerable doubt and difficulty
as to whether, after learning that there was an undisclosed
principal, the third party contracting could pursue both as
though there were a joint and several liability; and it has been
held that both might be held until satisfaction was secured
against one;” but, on the other hand, the prevailing rule seems
to be that the third person has but an election in such cases;”
and while the mere bringing of a suit alone will not constitute
conclusive evidence of an election,” any circumstance showing
that he had, after full knowledge of his right to sue either,
elected to sue one and proceeded to judgment, will conclude
him from afterward resorting to the other.”
The election must be made within a reasonable time after
disclosure, and what is a reasonable time, in view of all the cir-
cumstances of the case, is a question of fact. The question as
to whether certain conduct amounts to an election is also a
question for the jury." The third party cannot be deemed to
have made an election unless he had knowledge both of the
fact of the agency and of the name of the principal. This
knowledge is indispensable." It has been held that the com-
mencement of an action does not show an election,” and that
nothing less than satisfaction will discharge.”
This rule regarding the liability of the undisclosed principal
applies to all simple contracts, whether written or oral, and
100 Mass. 487; Royce v. Allen, 28 Vt. 5 Armstrong v. Stokes, L. R. 7 Q. B.
234; Ye Seng Co. v. Corlitt, 9 Fed, 598; Paterson v. Gaudasefen, 15 East,
Rep. 426. 62; Kingsley v. Davis, 104 Mass. 178;
1 Ford v. Williams, 21 How. 287;
Byington v. Simpson, 134 Mass. 169;
45 Am. Rep. 314; Freund v. Hixon,
49 Pac. Rep. 640; Maxey Mfg. Co. v.
#3urnham, 89 Me. 538.
2 Cobb v. Knapp, 71 N. Y. 348; 27
Am. Rep. 51; Beymer v. Bonsall, 79
Pa. St. 298. See Story, Agency, secs.
266–270; 2 Kent, Com. *631.
*Elliott v. Bodine (N.J.), 36 Atl.
Rep. 1038. See note in 2 L. R. A. 812.
4 Raymond v. Proprietors Crown &
E. Mill, 2 Met. 319,
Jones v. AEtna Ins. Co., 14 Conn. 501.
6 Merrill v. Kenyon, 48 Conn. 314;
40 Am. Rep. 174; Cobb v. Knapp, 71
N. Y. 348; Thompson v. Davenport,
9 B. & C. 78. See Sanger v. Warren
(Tex.), 40 S. W. Rep. 840.
7 Merrill v. Kenyon, supra; Bartlett
v. Hawley, 126 Mass, 92.
8 Cobb v. Knapp, Supra.
9 Maple v. Railway Co., 40 Ohio St.
313; 48 Am. Rep. 685. See the gen-
eral subject treated under Procedure,
Election of Parties. -
53
816 THINGS, [$ 614.
whether required to be in writing or otherwise." But it does
not apply to instruments under seal, unless the instrument was
One to the validity of which the seal was not essential, and the
principal has ratified or affirmed it, or his interest appears upon
its face.” -
It has been held in this country that where a third person
has dealt with one, supposing him to be the principal, but after-
ward discovers that he was acting for an undisclosed principal,
such third person cannot hold the principal liable, after dis-
closure, if the latter has in the meantime paid the agent or
altered the state of the account so that he would be prejudiced
if held liable.” *
This rule, however, has been severely criticised. It was
founded on a dictum of Lord Tenterden in Thompson v. Dav-
enport,” which has been discredited by later English cases. The
rule adopted in England seems much more in harmony with
justice.
It is that the principal is not liable where, before the other
party has intervened with his claim, the principal has settled
with, paid, or credited the agent in good faith and in reliance
upon such a state of conduct or representations on the part of
the other party as to reasonably lead the principal to infer that
the agent had already settled with such other party.”
Jęights of the Undisclosed Principal.—The rights which a
principal has arising from non-disclosure by One who is author-
ized to act for and on his behalf are different from the rights
of a third person with whom the agent deals without making
the disclosure. -
The matter arises in practice where the agent acts under in-
structions not to disclose who the principal is, or where, on his
own motion, he rightfully or wrongfully contracts without dis-
closing his principal. r
Against the Agent.”—It is quite plain and well settled that in
such cases the agent may render himself liable to the principal
1 Briggs v. Partridge, 64 N. Y. 357; 8 Fradley v. Hyland, 37 Fed. Rep.
21 Am. Rep. 617; Byington v. Simp- 49; Emerson v. Patch, 123 Mass. 541;
son, 134 Mass. 169; 45 Am. Rep. 314. Knapp v. Simon, 96 N. Y. 284.
* Mechem on Agency, sec. 702; 49 B. & C. 78.
Briggs v. Partridge, supra; Stowell 5 Heald v. Kenworthy, 10 Exch.
v. Eldred, 39 Wis. 614; Moore v. 739; Irvine v. Watson, 5 Q. B. D. 414.
Granby Min, etc. Co., 80 Mo. 86. 6 Agency is but One Species of fidu-
§ 614.] THING.S. 817
not only for a breach of contract, but to account for the pro-
ceeds of the transaction.
In fact, all that he obtains belongs to his principal, and so
long as he retains it he may be compelled to turn it over to his
principal, together with all accumulations and profits which
he has made out of dealing with the subject-matter."
As against a third person the rule must be somewhat differ-
ent. To a certain extent and under some limitations the prin-
cipal has rights, even as against a third person, arising out of
a contract with that third person made by the agent, although
the third person is not informed of the fact of agency or the
identity of the principal.”
This is an exception to the rule that one cannot be bound
by a contract all of the terms of which he has not fully as-
sented to.”
The rule seems to have its origin in the law merchant and
Ciary relations which pass under the
term of trusts, and which is pecul-
iarly a subject of equity jurisdiction.
For this reason much which might
be here given, but which is common
to all trust or fiduciary relations, will
be treated under the subject of
“Trusts and Accounting.”
1 Mechem on Agency, §§ 453, 469.
If an agent employed to purchase an
estate himself becomes the pur-
chaser, he will be treated as a trustee
for his principal. Reed v. Stanley, 6
Watts & S. 369. And the cestui gue
trust, the principal, has in all cases
the option to take the property, even
though converted into another form,
Or to recover its value. May v. Le
Clair, 11 Wall. 217; Stephens v. Buell,
2 Wall. 229; Keech v. Sanford, Sel.
Cas, Ch. 61; 1 Lead. Eq. Cas. 48. As
to tracing trust funds, see Mechem
on Agency, § 780.
2 George v. Clagett, 7 T. R. 355
(1795). “It is now well established
that a principal can maintain an
action on a written contract made
by his agent in the agent's name, the
Contract not disclosing the name of
the principal; and also that the
plaintiff may show by parol evidence
that such agent was in fact acting
for him. It has also been held that
the plaintiff may prove by parol that
the other contracting party named
in the contract was the agent of an
undisclosed principal, in which state
of the case the plaintiff could have
his remedy against either at his elec-
tion. Parol evidence will also be ad-
mitted in such cases to charge the
principal, or enable him to sue in his
own name; but the agent who has
so bound himself will never be al-
lowed to contradict the writing by
proving that he contracted only as
agent, and not as principal. New
Jersey Steam Nav. Co. v. Merchants’
Bank, 6 How. 381; Ford v. Williams,
21 How. 287; Baldwin v. Bank, 1
Wall. 234; Nash v. Towne, 5 Wall.
689; Higgins v. Senior, 8 Mees. & W.
844; Thomson v. Davenport, 9 Barn.
& C. 78; 1 Pars. Cont. (5th ed.) 64;
Smith, Lead. Cas. (6th Am. ed.) 421.”
Prichard v. Budd, 76 Fed. Rep. 710–
713. -
3 Boston Ice Co. v. Potter, 123 Mass.
38, cited Mechem, Agency, $ 771.
This and the other cases there cited
818 THINGS.
[$ 614.
to have been confined to mercantile contracts of brokerage,
insurance, sales, bailments, etc., where something of Value is to
be transferred, and does not extend to all executory contracts
to do or to perform."
The rule as stated by Evans is that an undisclosed principal
may sue, and be sued upon, mercantile contracts made by his
agent in his own name, subject to any defenses or equities
which, without notice, may exist against the agent.”
It is plain that the rule cannot be universal and cannot be
extended to such length as to practically make all executory
contracts to perform services or furnish goods, supplies, mate-
rial, and the like, assignable.” -
Neither can it extend to contracts where the innocent third
person was contracting for something which he desired spe-
cifically to come from the person with whom he dealt; and it
is no answer to his position to state that the party was really
but an agent, for every man has a right to choose with whom
he will contract and to whom he shall be bound.* The rules
of privity must be respected.
The principal’s right is based upon the policy of the law
merchant, and rests upon his liability to the third person. Al-
lowing this reciprocal right makes the contract mutual.”
Like other cases where persons who are strangers to the con-
tract seek to enforce it, the above rule does not apply to sealed
instruments.
JDissolution or termination of the contract of agency may be
brought about in the same manner that any other contract
may be dissolved, and, in addition thereto, whenever the agent
is guilty of misconduct, the principal has the right to treat the
agency as at an end or to insist upon the relation, as he sees fit.
As we have seen, the assumption of the character of the
agency binds the assumed agent, and after such assumption it
are not agency cases, but are in
point on the question of privity, as
heretofore pointed out.
1Since the law merchant has been
blended with the common law of the
land, the distinction is lost sight of.
See Prichard v. Budd, supra.
* Ewell's Evans' Agency, 531. In
McConnell v. East P. L. Co., 100 Ga.
#
129, the rule is stated to apply to all
cases, but the statement is too broad.
3Mechem on Agency, § 771.
4Boston Ice Co. v. Potter, supra.
5The principal must assume re-
sponsibility for all of the agent's
acts, agreements and liabilities. Mc-
Connell v. East P. L. Co., Supra, cit-
ing Mechem on Agency, § 773.
§ 615.] THINGs. 819
|
requires some positive, unequivocal act or notice to put an end
to the relation and relieve the agent from the burdens and du-
ties of agency." Where the agent becomes vested with an in-
terest in the subject-matter, it is not within the power of the
principal to revoke such an interest; but in such cases the
agency is not strictly an agency to negotiate a new contract,
but a power to execute a trust.”
SEC. 615. Partnership.– The relationship which grows out
of the contract of partnership has been variously defined, but
it is difficult to frame a definition which shall be justly accu-
rate in including all of the elements which must be present and
excluding those which must not exist.”
Perhaps one taken from a distinguished English writer on
commercial law, whose work is not so commonly in the hands
of American lawyers as some to which reference may be made,
will serve the present purpose of the author, which is to direct
attention to the fact that the definitions do not sufficiently dis-
tinguish the association of partnership from several other forms
of association by which several persons combine their capital,
skill and labor in enterprises for the purpose of gain.
The practical thing is to make these distinctions plain,” and
in treating corporations an attempt was made to distinguish a
corporation from other forms of association.”
It was there pointed out that corporations were associations
for governmental, business, charitable or religious objects. So,
without incorporating, men associate for religious, charitable
and business or mercantile objects. r
The fact of association and objects, then, do not distinguish
the one relation from the other. Put even as to its objects
one feature is always present—a partnership is a creature
12 Pom. Eq. Jur. 956. See Rhode
v. Bate, L. R. 1 Ch. 252.
2See Mechem on Agency, § 204.
3 The subject of partnership has
been so ably and concisely treated
by Professor Mechem in his Elements
of Partnership, a work justly popu-
lar among students, that the writer
feels justified in giving to this sub-
ject only such treatment as will per-
haps make the distinctive features
Of the contract of partnership stand
out in plain contrast with other con-
tracts providing for the association
of capital and effort, adding to this
the fundamental principles of the
subject, and in addition showing how
specific rules flow naturally from
these fundamental principles.
4 See observations on definition,
ante, Sec. 60.
5 Section 472 should be read in this
connection,
820 THINGS. [$ 615.
of the law-merchant, and business is the object of the associa-
tion." - -
The form of association is always contractual. The partners
are all principals and joint owners of the business. They are
joint owners of the profits. They never lose their identity, but
are always regarded as acting, though for some purposes the
firm may be regarded as an entity. There is no such thing as
a succession of members without a change of the firm. Every
member is the general agent of the firm.
Mr. Smith says: “IPartnership is the result of a contract,
whereby two or more persons agree to combine property or
labor for the purpose of a common undertaking and the ac-
Quisition of a common benefit. There may be a partnership
in One transaction as well as in a continuing business, and be-
tween persons out of trade as well as in trade, since, in either
case, there may be a combination of property or labor, in order
to a common undertaking and a common profit.”
The Ancient Test Unreliable.— Mr. Smith continues: “This
community of profits is the criterion whereby to ascertain
whether a contract be really one of partnership, for one part-
ner may stipulate to be free from loss, and the stipulation will
hold good as between himself and his companions, though it
will not diminish his liability to strangers. So one partner
may contribute all the money, all the stock, or all the labor
necessary for the purpose of the firm. Put if there be not a
community of profit, there is no real partnership; while, on
the other hand, where such community of profit exists, each of
the sharers in it is and may be treated by the creditors of the
whole body as a partner,” although he may have stipulated
with his companions not to be responsible for the engagements
entered into by them with strangers, to whom he, notwithstand-
1 “Trading partnership’’ is the
name for pure partnerships. It dis-
tinguishes them from societies
formed for pleasure, where dealing
is not contemplated. See ante, sec.
472.
* The author is not giving assent
to the doctrine, but is using it to di-
rect attention to the growth of the
rule and the real tests of the rela-
tion. Mr. Smith relies on Waugh v.
Carver, 2 H. Blk. 235; 2 Sm. Ld. Cas.
1316; Mechem’s Cases on Partn. 67.
Mr. Smith seems himself to hold that
the mere participation in profits is
Inot enough, but that he must share
as Owner. This can only be where
he is an owner of the business. In
many cases the only visible assets
are the profits, e. g., in professional
partnerships. See post, p. 822.]
§ 615.] . PARTNERSHIP. -821
ing, will be liable, and very justly so; for by taking a part of
the profits he takes from the creditors a part of that fund
which is the proper security to them for the payment of their
debts; and on this ground it is that a dormant partner, that is
to say, one who is a sharer in the concern, but does not appear
to the world as such, is held responsible for its engagements.”
JElement of Agency Omitted.— It will be observed that there
is no mention here made of the relation of agency which ex-
ists between partners. It is one of the essential elements of
partnership that each partner is an agent of the firm, and there
are courts that hold that the law of partnership is but a branch
of the law of agency. However important the feature of agency
is, it cannot be that agency is the generic word in partnership,
but a species. Partnership differs from a mere agency in this:
that a partnership is not a contract of employment, and each
partner, while an agent, is at the same time a principal.”
Jºach partner is a joint owner—an agent never is.
The relation rests upon at least three principal elements:
(a) Community of interest in business (not necessarily of cap-
ital); (b) community of ownership in the profits; (c) the agency
of each in regard to the firm business.
Not any of these elements alone necessarily makes a partner-
ship, but if they combine the result is a partnership irrespective
of any intention of the partners.” If they are not present there
is no partnership, even though the parties speak of the relation
as such.”
The extent of each may be limited, as between the partners,
by special contract.”
1 Smith's Mer. Law, pp. 44, 45.
2 Parsons claims that the agency
is based upon joint ownership of
firm property (Pars. on Part. 170), but
this view is not tenable; at least it is
not the sole ground of the agency.
$uch an agency is an incident of the
particular contract. Van Keuren v.
Parmelee, 52 N. Y. 523.
3 Beecher v. Bush, 45 Mich. 188; 40
Am. Rep. 465; Mechem’s Cases on
Partn. 86. The intention is not imma-
terial, but not controlling. “Where
a partnership is claimed to exist, not
in writing, the intention of the par-
ties is a material fact to be ascer-
tained from their conduct and decla-
rations; but where the agreement is
in writing its true construction must
be determined, and from that con-
struction it is to be found whether a
partnership exists.” State Nat. Bank
of S. v. Butler, 149 Ill. 575. See Beecher
v. Bush, supra.
4 Livingston v. Lynch, 4 Johns. Ch.
573.
5 Parsons, in his work on Contracts,
speaking of Community of interest
822 TEIINGS.
[$ 615.
As will more clearly appear as we proceed, a partnership is
an agreement to combine, to enter into a relation of commu-
nity of interest, and the one word which describes the situation
is combination.
The three branches of combination are community of inter-
est in a business, community of interest in the profits of that
business, equality of agency of each partner." Having directed
attention to the three great topics of partnership, we will ex-
amine them separately.
Participation in Profits.--It may be useful at the outset to
direct attention to a subject which frequently constitutes a
stumbling block to students, and upon which courts have not
agreed, viz.: The nature of the participation in the profits
which will constitute a partnership, or which may exist with-
out constituting that relation.
The same learned author above quoted says: “Further, it is
to be observed that, to constitute a community of proft as is
here intended, a partner must not only share in the profits of
his companions, but must share in them as a principal, i. e., he
must not be a mere agent, factor or servant, receiving, in lieu
of wages, a sum proportioned to the profit gained by his em-
ployers, or a certain portion of a fund which includes the prof-
its, but is not dependent upon them for existence.”
and agency, says: “We think the re-
lation rests upon both these founda-
tions together. It is true there may
be a copartnership where one or
more of the partners has no interest
in the capital stock, by agreement
among themselves. But even then
all own together the profits and so
much of the funds or capital of the
firm as consists of profits. Partners
are, undoubtedly, Some way agents
of each other. But the principle of
agency alone will not explain the
whole law of their mutual responsi-
bility. Out of the combination of
this principle with those which grow
Out of the community of property
and of interest, the law of partner-
ship is founded. And this law may
often be illustrated by a reference to
the principles of agency, but must
still be regarded as consisting of a
distinct system of rules and princi-
ples peculiar to itself.” Page 149.
1 See Parsons on Contracts, Book 1,
ch. 12, sec. 11.
2 Smith’s Mer. Law, 47. That is,
he must be more than an employee
whose compensation is measured by
a proportion of profits of the busi-
ness; he must be a principal, i. e., in-
terested in the business or sharing
in the profits will not make him a
partner. See Beecher v. Bush, supra,
relying on Cox v. Hickman, 8 H. of
L. Cas. 268; Mechem’s Cases, 70. In
Fougner v. First Nat. Bank, 141 Ill.
124, the court said: “The test, or one
of the tests, whether a person not
Ostensibly a partner is, nevertheless,
in contemplation of law, a partner, is
whether he is entitled to participate
§ 615.] PARTNERSEIIP. S23
The participation in profits which is frequently made the
principal inquiry is in reality but an incident to the character
of interest which each partner has in the business, and will be
more fully explained in that connection."
The Governing Principles.—Nearly every specific rule gov-
erning the rights and liabilities of partners will be found to
flow from and depend upon some one of the following funda-
mental propositions:
First. The nature of the relation of the partners is contract-
ual, existing by virtue of executory contract, which does not
submerge the identity of the individuals and establish the per-
sonality or status of the firm as is done in the case of the cor-
poration. - .
Second. Character of Ownership.–The partners are joint
owners of the business and of everything incident to it, includ-
ing the actual capital invested and the profits which arise from
it; and their ownership is a joint ownership, as distinguished
from a common ownership.”
Third. The Agency of the Partners.-The partners are agents
of the firm and of each other within the scope of the business
which it is the object of the firm to transact. This agency is
implied rather than expressed, and results naturally from their
joint ownership in the enterprise. It is peculiar in this: that
it is not an agency growing out of employment, but an agency
in the profits.” After quoting from
Cox v. Hickman, 8 H. L. 268, it is
said: “In the application of this rule
many decisions are to be found by
the courts of last resort in this
country to the effect that, notwith-
standing a party may contract to re-
ceive a part of the profits of a busi-
ness, he cannot be held liable as a
partner. On the other hand, many
others — sometimes by the same
courts— hold the contrary. These
cases are all reconcilable on the dis-
tinction that in the first class of
cases there was a mere hiring of
service, property or money to be paid
for out of the profits of the business
in which it was engaged, while in
the latter there was a proprietary
interest in the business.” In Meehan
v. Valentine, 145 U. S. 622, it is said:
“Those persons are partners who con-
tribute either property or money to
carry on a joint business for their
common benefit, and who own and
share the profits thereof in certain
proportions.” Jernee v. Simonson
(N. J. Eq.), 43 Atl. Rep. 370.
1 See post, p. 828, note 5.
22 Blk. 399. This idea of joint
ownership, as distinguished from
ownership in severalty, in common,
and in coparcenary, should be mas-
tered at the outset. It is quite as
important in real estate and plead-
ing as it is here. The principle is of
the substance, and all formal mat-
ters, such as joinder in actions and
the like, are mere shadows of it.
824. THINGS, [$ 615.
resulting from joint interest." The rights, liabilities and duties
of a principal combine with the rights, liabilities and duties of
an agent.” ... *
Pourth. That the Ziability for forts is several,” but may be
treated as joint and several at the election of the injured party,’
is a proposition not peculiar to partnerships, but applying to
all persons.
Mature of the Jºelation.—To one who does not thoroughly
comprehend the distinction between the legal idea of status or
personality, and the relation growing out of a joint ownership,
it is difficult to determine whether a partnership is a contract-
ual relation merely, or a status, and the authorities may seem
not always in harmony upon the question. For most purposes
the firm is not regarded as a person, but because of the joint
nature of the ownership the existence of the firm is recognized.
The question is, Does the result of conduct or contract, which
the law will regard as establishing a partnership, create a new
legal entity, or Juristic person, such as the law recognizes as
having a standing apart from that of the individual members?
It is plain that in a true sense it does not.”
From the standpoint of a corporation this question has been
heretofore examined. What is there said sufficiently explains
the idea involved in this question."
All of the authorities agree that a partnership arises out of
contract," and it is universally agreed that it does not create a
new legal entity for all purposes.”
In the aspect of personality a corporation differs from all
other associations between individuals to accomplish a common
1 Swift, System of Laws, 272, top
(Q).
2 Livingston v. Roosevelt, 4 John.
251; 4 Am. T)ec. 273; Mechem’s Ele-
ments of Partnership.
3 Andrews' Stephen’s Pl, sec. 25.
4 As to the qualification of the rule
when the tort involves a contract,
see Castle v. Bullard, 23 How. 183.
5 The firm cannot maintain a suit—
it is not persona standi in judicio.
6 Amte, p. 493.
7 Therefore any person competent
to contract may enter into a partner-
ship. The contracts of partnership
of infants, insane persons or married
women are on the same basis as their
other contracts. See supra, title Con-
tracts; Mechem on Partnership, ch.
3. A corporation cannot become a
partner without special authority
conferred for that purpose. Mechem,
Elem. of Partn., sec. 26.
8The law of England knew no such
body as a firm or artificial body. In
Scotland it is regarded as a person,
i. e., it has a status. Pollock on Partn.,
p. 18.
§ 615.]
PARTNERSHIP. 825
object, but a partnership resembles in this respect several other
associations from which it is to be distinguished by other inci-
dents, e.g., unincorporated joint-stock associations and syndi-
Cates. $ •,
The fºrm as a body distinct from the members is, however,
under some circumstances recognized as having an existence,
although not ascribed a personality or rising to the dignity of
a status. When this idea is examined critically it will be
found to depend on joint ownership and joint contract. A joint
contract is an entire thing and is not a contract with each con-
tracting party.
The entity of the association is regarded as controlling im-
portant rights and important liabilities; e.g., a creditor of the
firm stands in better position as to partnership property than
does a mere creditor of one of the partners, who cannot reach
that partner's interest until the firm creditor is satisfied.” And
y
he must first exhaust the individual property of the partner.”
Conversely, a creditor of the firm cannot resort to the indi-
1 Jessell, J., in Pooley v. Driver, L.
R. 5 Ch. Div. 458, says: “You cannot
grasp the notion of agency (between
partners) unless you grasp the notion
of a firm as a separate entity.”
Quoted in Meehan v. Valentine, 145
U. S. 611. But this separate entity
is not different in principle from
the entity of joint contractors. A
joint contract is not a contract
with each. And. Steph. Pl., p. 36,
note 3. In Clark v. Laird, 1 MO.
App. 106, the court said: “Two con-
cerns are different entities, each with
legal capacity to buy and sell to each
Other, although they had parties be-
longing to both firms.” It was said
in Henry v. Anderson, 77 Ind. 363,
that “Although individuals compose
partnerships, yet the partnership is
a legal entity, distinct and different
from the persons who constitute
its component parts. This distinc-
tion is shown in many instances, no-
tably in that rule which requires
individual property to be first ap-
plied to the payment of individual
debts and partnership property to
partnership debts.” But is it not
clear that the true explanation lies
in the nature of the ownership, which
Originally could only be reached in
equity ? Some of the code states
recognize the entity of partnership
by permitting One firm to sue an-
other where the two firms have a
common partner. Newlon v. Heaton,
42 Iowa, 593. A partnership or gen-
eral joint-stock company is just as
distinct and palpable an entity in
the eye of the law as distinguished
from individuals composing it as is
a corporation. and can contract as an
individualized and unified party with
one of its members as effectually as
a corporation with one of its stock-
holders. Walker v. Wait, 50 Vt. 668.
2 Reeves v. Ayers, 38 Ill. 418; Scud-
der v. Delashmutt, 7 Iowa, 39; 71 Am.
Dec. 428; Eighth Nat. Bank v. Fitch,
49 N. Y. 539; Riedeburg v. Schmitt,
| 71 Wis. 644; Mendenhall v. Benbow,
84 N. C. 646.
3 Murrill v. Neill, 8 How, 414,
$26 THINGS. - [$ 615.
vidual liability until he has exhausted the firm property. These
rules, however, depend upon the principle that firm contracts
are joint and not joint and several, and also upon the character
of the ownership of firm property.
Eor the security of his interest in debts due him by the other
partners in relation to firm business, a partner also has a lien
upon the firm assets superior to the claim of a creditor of an
individual partner." This is but the natural result of the joint
tenancy in firm property, the extent of which depends upon
the state of the account between the partners. So it is not
strictly a lien, though so called.
These illustrations will serve to show that the existence of
the firm as an entity is regarded, but only in a modified sense,
and to preserve the equitable rights of the parties.
Notwithstanding the observations of the court in Coa, v. Hick-
man,” the writer cannot but believe that the identity of the
firm, as it is sometimes called in modern cases, is but the joint
interest recognized by the common law, and much of that which
is said to result from agency really traces back to the same
SOUll’Cé. -
Swift, in his System of Law, says: “The incidents to joint
estates are, that the act of each tenant in many cases is con-
sidered as the act of the whole. A verbal lease by one, reserv-
ing rent to himself, shall inure to the benefit of all. The
surrender of a lease to one, that was given by all, shall inure
to the benefit of all. Delivery of possession to One, or an en-
try or re-entry by one, has the same operation; the possession
of one is the possession of all, so as to prevent either from gain-
ing a title by the possession of fifteen years. So, if either of
the joint tenants come within the description of the saving
clause of the statute respecting the possession of lands, he
saves the estate for all. They cannot sue or be sued without
joining or being joined in the suit, in all actions that relate to
the joint estate.” These rules cover every position, to accom-
plish which the modern cases resort to the idea of entity of the
firm. - -
Mame.—The identity of the partners may be lost in the firm
name, because, excepting by the provisions of local law, a part-
Walsh v. Adams, 3 Den. 125. 3 Swift's System of Laws of Con-
2 Infra, pp. 828, 835. necticut, p. 272 (1795).
§ 615.] - PARTNERSHIP. 827
nership is not obliged to do business in the name of the partners,
or any of them, but may adopt a fictitious name, or may do
business under the name of one partner, and in such cases the
right to continue in such use may become a question of diffi-
culty.” •
In all such cases the question is whether the business trans-
acted is firm business.” -
The name may be changed with the consent of all the part-
ners.” 4.
If one of the partners carries on a separate business it be-
comes a matter of some difficulty to determine on whose ac-
count he is trading, and there the name will be important,
perhaps controlling.” -
Character of Ownership.— Most of the definitions declare in
substance that a partnership is a voluntary association between
two or more persons to combine their property, labor or skill,
or any of these, in some business for the purpose of mutual
profit." .
As has been heretofore pointed out, if the parties apply for
and receive a charter from the state, the association is changed
from that of a partnership to that of a corporation.
It must not be supposed, however, that every unincorporated
association by individuals of their capital, whether it be talents,
skill, or labor, or property, for the purpose of engaging in a
lawful enterprise for a common profit, constitutes a partnership."
Every partnership is of this nature, but not every combina-
tion of this nature is a partnership.
There are other features which distinguish a pure partnership
from joint associations, Syndicates, or organized Societies not
for profit.
1 Edgerton v. Preston, 15 Ill. App. nership, p. 2; 1 Lindley on Partner-
23; Wright v. Hooker, 10 N. Y. 51. ship (Ewell’s ed.), p. 1.
* Higgins v. Higgins Soap Co., 144 7 Mechem, Partn., § 50. For ex-
N. Y. 462; 27 L. R. A. 42. ample, connecting lines of railroads.
8 Mechem, Elem. of Part., secs. Merrick v. Gordon, 20 N. Y. 93. Pro-
82–84; Ontario Bank v. Hennessy, 48 fessional partners who contribute no
N. Y. 545. * , capital except time and talents are
4 Crocker v. Colwell, 46 N. Y. 212, still owners of the business and sub-
*Manufacturers' & Merchants' ject to all the rules of the relation.
Bank v. Winship, 5 Pick. 11. See Warner & Post v. Griswold, 8
*See Mechem’s Elements of Part- Wend, 665 (a firm of attorneys).
828 THINGS, [$ 615.
Men may combine their capital in an enterprise for their
mutual profit without incorporation and yet not constitute
themselves partners." The distinguishing test in this respect
is found in the manner of ownership” and the presence or ab-
sence of the mutual agency. In a partnership the ownership
of the partnership business is always joint in its nature, though
not having all the same elements found in ancient joint-tenancy
in land.” This joint ownership naturally draws with it the
ownership of the profits and the relation of agency; but we have
seen that it is not every person who receives for his services
in a business a portion of the profits or gross earnings” who
thereby becomes a partner. In order that this result follow, he
must be a joint owner of the business out of which the profits
arise, and takes the profits, not as compensation, but because
he is owner.”
In a syndicate there is neither joint nor common ownership,
1 A speculating agreement between
two to purchase and sell a piece of
property and share in the profits does
not necessarily make them partners.
Marine Bank v. Ogden, 29 Ill. 261.
2 Baldwin v. Burrows, 47 N. Y. 199;
Magovern v. Robertson, 116 N. Y. 61;
5 TL. R. A. 589.
3“For many purposes a firm, though
managed by its members, is a dis-
tinct concern and possesses a sort of
individuality. The assets are held
in a sort of community, but the part-
ners do not hold as common tenants
or joint tenants. The property is dis-
tinctly separated from that belong-
ing to the individual members, and
it constitutes an identical and entire
interest.” Hubbardston Lumber Co.
v. Covert, 35 Mich. 253. Quoted in
Mich. Trust Co. v. Chapin, 106 Mich.
384. It follows that there can be no
homestead interest in partnership
realty. Mich. Trust Co. v. Chapin,
Supra.
4 Patterson v. Blanchard, 5 N. Y.
186.
5 Putnam v. Wise, 1 Hill, 234–39;.
Taylor v. Perkins, 26 Wend. 124–30.
“The law declares that those who
take the profits of a trading concern
as such are liable to the losses, even
if they have stipulated to the con-
trary. Waugh v. Carver, Smith's
Tlead. Cas. 786, and the notes thereto.
The phrase, “taking the profits as
Such,” is not a happy One, and there
is some difficulty at times in defining
what it means, but I think it means
at all events this. It is not possible,
according to common law, to cause
a trading concern to be carried on
On the terms that the advantages of
a partnership, including the partici-
pation. In profits, and the partnership
lien and security over the assets of
the firm, shall belong to those who
have but a limited liability. I am
aware of no case Or authority incon-
sistent with the proposition thus
guarded.” Per Blackburn, J., in Cox
v. Hickman, 8 H. L. Cas, 268. From
this it appears that the learned judge
did not regard Waugh v. Carver as
going to the extent of holding that
the mere taking of profits was con-
clusive, and such seems to be the light
in which Mr. Smith viewed that case.
Ante, p. 822.
§ 615.] - PARTNERSHIP. 829
but the legal title to property is placed in the hands of a third
person who is a trustee, and the parties do not agree to venture
the property in a going business. A syndicate, strictly speak-
ing, is not for business, but to hold the property for the pur-
pose of a rise in its value. It is speculative rather than in the
nature of trade or traffic. The owners of shares may transfer
their interest without dissolving the association.
In a joint-stock association the ownership is that of tenants in
common rather than joint ownership, and they, too, may assign
their shares.” This perpetuation of a body, although there is
a change of men, is what is called perpetual succession, and is
one of the peculiar features of a corporation, but it is not pe-
culiar to that association. It does not obtain in a partnership
which is based on peculiar personal trust and confidence. The
delectus personſe—the selection of the person—is essential.”
This joint ownership carries with it all the peculiar incidents
of that relation which are established and recognized by the
English law. A peculiarity of this relation of joint ownership
was the doctrine of survivorship, by which, in the earliest period
of modern English law, the property of a joint owner who died
descended absolutely to the survivor, a principle which, in a
modified form and for special purposes, is even yet applied to
partnership property.
Having mentioned the importance for many purposes of un-
derstanding the legal idea of joint ownership, an attempt will
be here made to state the rule, show its origin and something
of its application to the present subject. The matter is accu-
rately and concisely stated by Wood in his Institutes of the
Law of England:*
“An estate in joint tenancy is where a man is seised of lands
Or tenements, and makes a feoffment to two or more and their
heirs, or makes a lease to them for life, or where two or more
have a joint estate or possession of a chałżel, real or personal, or
1This distinction is very clearly 3 Ante, pp. 562, 563, note.
made by Chancellor Kent in Living- 4 Wood’s Institutes was published
ston v. Lynch, 4 Johns. Ch. 573. in 1722. It is highly commended by
* A partner has no individual as- Blackstone, who uses it very freely.
signable interest in the assets of the The corresponding part of Blackstone
firm until the firm debts are paid. is vol. 2, p. *399.
Kenneweg v. Schilansky, 31 S. E.
Rep. 949.
830 TEIIINGS.
[$ 615.
a joint interest in a debt, duty, covenant or contract, and the part
of him that dieth goes not to the executor, but the whole to the sur-
vivors or survivor.” This is called the jus accrescendi..'
The Rule Wever Applied to Merchant Traders.- “An excep-
tion is to be made of two joint merchants, for the benefit of the
stock and debts,” which they have as partners, goes to the execu-
tor of him that dies and to the survivor, according to their shares,
by the law merchant, for encouragement of trade, though the
debts and credits as against third persons survive.” Every joint
tenant is seised per my et per tout, i. e., seised by every parcel,
in every parcel and in the whole jointly with his companion.”
broom in his Maxims “ says that it was “the well-known rule
of the law merchant, that, for the encouragement of commerce,
the right of survivorship, which is ordinarily incident to a joint
tenancy, shall not exist amongst trading partners — jus ac-
crescend; inter mercatores pro beneficio commerciº Zoeum non
habet,_* a rule which applies to manufacturers as well as to
merchants;" to trade fixtures also, which, being removable, are
1 Finch in his treatise on the law
(1595) says: “Sundry men possessing
the same thing by purchase are joint
tenants or tenants in common. Joint
tenants which possess by the same
title. As if two, three or more be en-
feoffed of certain lands to hold to
them and their heirs, or during their
own or another’s life, or disseise an-
other to their own use, or a lease be
made, or a horse or other chattel per-
somal given unto them. And here
the survivor shall have the whole in
the same sort as he had his part, ex-
cepting only present interests of the
thing itself granted by him that
dieth.” Finch's Law (2d book), p. 97.
2 Not the stock and credits, but the
beneficial use thereof.
3 The common law knew no other
rule, if indeed there was any law on
the subject except the law merchant.
It is probable that the following stat-
ute was but declaratory of the law
merchant: “The wares, merchan-
dises, debts or duties that merchants
have as joint traders or partners shall
not go to the survivor, but shall go
to the executor of him that is de-
Ceased; and the executor may join
in an action with a surviving mer-
chant. 31 Edw. III., 7; Coke on Little-
ton, fol. 182; 2 Levinz. 108; 1 Vern.
217. In Copartnerships between mer-
chants it is not necessary to provide
against Survivorship. So, where there
are two joint merchants and one of
them dies, the other shall have ac-
count against their factor, without
the joining of the executor of the de-
ceased. Lord Raymond, 340.” Beawes'
Lex Merc. 37.
4 Broom’s Max. 455.
5 Co. Litt. 182a; Brownl. 99; Noy,
Max. (9th ed.) 79; 1 Beawes' Lex
Merc. (6th ed.) 42.
6 Buckley v. Barber, 6 Exch. 164,
by comparing which case with Cross-
field v. Such, 8 Exch. 825, and Morgan
v. Marquis, 9 Exch. 145, the significa-
tion and operation of the maxim as
to jus accrescendi will be perceived.
§ 615.] PARTNERSHIP. 831
part of the stock in trade; and has been extended to real as
well as personal property, so that all property, whatever be its
nature, purchased with partnership capital for the purpose of
the partnership trade, continues to be partnership capital and
to have to every intent the quality of personal estate.”
This account shows sufficiently the nature of the joint ten-
ancy of partners in personal property, and how, by the law mer-
chant, recognized by the statutes of England, the doctrine of
survivorship became modified as applied to partnership prop-
erty.
So much of the law of joint tenancy and survivorship as ap-
plies to real property generally will be left for that subject, it
being sufficient here to mention that partnership holding of real
estate is treated rather as a trust estate for the benefit of all
parties, partners and creditors,” the strict rules of the common
law as to estates in land never having been applied in America
to lands held by partners.
Whether real estate is partnership property it is often diffi-
cult to determine, and depends upon the intention of the part-
and creditor, said: “It is an equi-
table right accompanied by an equi-
table title. It is an interest in the
property which courts of chancery
will recognize and support. . . .
1 Buckley v. Barber, supra.
*Per Sir J. Leach, M. R., in Phillips
v. Phillips, 1 My. & K. 663, and in
Fereday v. Wightwick, 1 Russ. &
My. 49; Townsend v. Devaynes, Mont.
Partnership (2d ed.), note, p. 96 (2 A.);
per Lord Eldon, C., Selkrig v. Davis,
2 Dow, 242; Houghton v. Houghton,
11 Sim. 491; Crawshay v. Maule, 1
Swanst. 521, cited Baxter v. Newman,
8 Scott N. R. 1035. Phillips v. Phil-
lips, supra, was overruled as to a dif-
ferent point therein by Taylor v. Tay-
lor, 3 De G., M. & G. 190.
3 Trowbridge v. Cross, 117 Ill. 109;
Holton v. Guinn, 65 Fed. Rep. 450;
Erwin's Appeal, 39 Pa. St. 535; 80
Am. Dec. 542, and cases cited in note
to Goldthwaite v. Janney, 28 L. R. A.
161. In Shanks v. Klein, 104 U. S. 18,
the court held that the real estate of
a partnership is to be treated as part-
nership property. This was a case
where the title was in the surviving
partner. The court, in speaking of
the rights of the surviving partner
Real estate so situated is appropri-
ated to the Satisfaction of the part-
nership debts, and for that purpose
and to that extent it shall be treated
as personal property of the partner-
ship, and like other personal prop-
erty pass under the control of the
Surviving partner. English courts
and a preponderance of authority in
American courts are on the same side
of the question.” In Allen v. Withrow,
110 U. S. 120, it was held that real
property owned by a partnership and
purchased with partnership funds is,
for the purpose of settling the debts
of the partnership and distributing
its effects, treated in equity as per-
sonal property. Mechem’s Elements
of Partnership, secs. 108, 109; Hewitt
v. Rankin, 41 Iowa, 35.
53
THINGS, [$ 615.
ners, which may be inferred from the use of the property as
partnership assets and from other circumstances." The use by
the partnership does not make it the property of the firm, and
neither is it to be conclusively held to be the property of the
individual member in whose name the title is.” -
So long as the business is continuing and the extent of the lia-
bilities of the firm to creditors is unascertained, or the various
rights and liabilities of the partners unliquidated by an ac-
counting, the real estate is held, at least in equity, in the same
light as though it were personal estate for all partnership pur-
poses, and, with other partnership effects, subject to the pay-
ment offirm debts and losses and return of the capital originally
advanced by each partner.” •.
When these objects are accomplished the interest of partners
in real estate is held to be that of tenants in common.
The general rules and principles of the law of partnership
which govern and relate to the disposition of partnership prop-
erty do not apply in their full extent to real estate. They have
only the interest of tenants in common, and one partner can
convey but his own interest therein.” Such was the law of
England.”
Jęelation of Ship-owners.-The maritime law of England never
recognized joint ownership in ships, and, strictly speaking, there
could be no partnership in such property, so that it was admis-
sible for the owners in common of a ship to sell and transfer
their interest therein. As a matter of course, in the manage-
ment of the ship they might become partners by agreement.”
Sale of Partner's Interest on Evecution.— A partner's inter-
est in firm property may be applied in satisfaction of his indi-
vidual debt, but it results from the rule that the claims of the
1 Robinson Bank v. Miller, infra.
2 Goldthwaite v. Janney, 102 Ala.
431; 28 L. R. A. 161; Mechem on Part-
nership, § 104 et seq. -
3 Kruschke v. Stefan, 83 Wis. 373;
Hewitt v. Rankin, 41 Iowa, 35; Na-
tional Union Bank v. National Mech.
Bank, 80 Md. 371; 27 L. R. A. 476;
T)elmonico V. Guillaume, 2 Sandf. Ch.
366.
* Coles v. Coles, 15 Johns, 159; 8 Am,
Dec. 231.
5 Id. The cases affirming and il-
lustrating these propositions are very
numerous. Many of them are cited
in an exhaustive note to Robinson
Bank v. Miller, 153 Ill. 244; 27 L. R. A.
449.
6 Williams v. Lawrence, 47 N. Y.,
462. See Kirby v. Schoonmaker, 3.
Barb. Ch. 46; Lawy. Ed., vol. 5, p. 809,
note.
§ 615.] PARTNERSHIP. 833
other partners and of the firm creditors upon the partnership
assets are superior to the claim of a creditor of an individual
partner that some difficulty will be experienced in applying
the partnership interest to the payment of an individual debt
without interfering with these rights.
The character of ownership is such that no partner has any
particular title to any specific thing, but at most has a right to
an accounting to ascertain his interest and profits and the right
to avail himself of these.
Courts are unanimous in holding that a creditor can have
no more nor any greater rights in the premises than his debtor,
but the attempts which are made to subject the individual in-
terest of a partner to levy and sale on ordinary legal process
have resulted in many absurdities in doctrine and loss to all
parties. The uncertain contingent interest of a partner is
placed in its most unfavorable form when offered for sale on
execution. ar
It has been held that an officer having an execution against
an individual may, and must, séize the whole of the partner-
ship assets, but that he may only sell the interest of the debtor
partner." *
But on the other hand it has been held, and it is the better
view, that the officer can get no better right than the partner,
and that he has no right to take exclusive possession.”
All the courts agree that no specific chattel can be taken
of the partners. Gibson v. Stevens,
7 N. H. 352; Morrison v. Blodgett, 8
1 Walsh v. Adams, 3 Den. 125; Clag- -
gett v. Kilbourne, 1 Black,346; United
States v. Hack, 8 Pet. 271.
2 Garvin v. Paul, 47 N. H. 158;
FIutchinson v. Dubois, 45 Mich. 143.
Judge Cooley seems to question the
right of the officer to take possession
of the property. He says: “If any
levy of an execution upon such an in-
terest can be made, it must be so made
and enforced as to protect all rights
of others. One man’s interest must
not be sacrificed because another who
is associated with him in business
happens to be in debt. Specific chat-
tels must not be taken on the execu-
tion because the specific chattels are
owned by the firm and not by either
id. 238; Treadwell v. Brown, 43 id.
290; Brewster v. Hammet, 4 Conn.
540; Matter of Smith, 16 Johns. 102;
Wiles v. Maddox, 26 MO. 77. The ut-
most extent of the officer's right —
if he can levy at all — must be to
seize the interest of the partner, what-
ever it may be, subject to all the part-
nership debts and to the final account-
ing. Church v. Knox, 2 Conn. 514;
Tappan v. Blaisdell, 5 N. H. 193; Sir-
rine v. Briggs, 31 Mich. 443; Rein-
heimer v. Hemingway, 35 Pa. St. 432;
Enerr v. Hoffman, 65 Pa. St. 126.”
Hutchinson v. Dubois, 45 Mich. 173–
176,
834 . THINGs. . [$ 615.
out of a larger mass;' that is, there can be no seizure of part of a
stock of goods, although the debt be small and the stock large.
To allow the creditor or the officer holding a writ in his
favor to interfere and take any sort of manual possession of
the goods, or pedis possessio of the place of business of a part-
nership, is an absurdity, and some courts have been conscious
of it. It has been said that “one man’s interest must not be
sacrificed because another who is so associated with him in
business happens to be in debt.”* Still, an interference with
the partnership business, disastrous in its natural consequences,
has been generally allowed.
In one case it was held that the levy might be made and
the interest of the partner be ascertained by a bill filed and de-
termined before sale on execution.” In most states the law is
that the sale must take place without any opportunity to judge
of the value of the partner's unascertained interest, the officer
selling and the purchaser buying an unknown contingent in-
terest. This practice is unjust and improvident as to all par-
ties, but it is in accordance with the law.”
There is no reason why such an absurdity should be allowed
to continue. The remedy, however, is with the legislatures of
the various states, unless perhaps in some cases a court of equity
would on terms restrain the seizing and selling on the ground of
irreparable damage, Ordering an account as part of the relief.
It should be provided by statute that a paper levy be made
by the sheriff, recorded in the same manner as chattel mort-
gages are recorded, and in analogy to the practice in levying
and selling real property in Illinois. Following this paper levy
should be a process, as in cases of accounting, and in this man-
ner the partner's interest be ascertained to a certainty. And
such ascertained interest could be either sold or satisfied by the
firm without destroying or materially interfering with the firm
business. The law on this subject is neither certain nor satis-
factory.” -
1 Cases cited in note 2, p. 833. Swan v. Gilbert, 67 Ill. App. 236;
*Per Cooley, J., Hutchinson v. Du- Johnson v. Wingfield (Tenn. Ch.
bois, supra. App.), 42 S. W. Rep. 203; Williams
* Johnson v. Wingfield, infra. Cit- v. Lewis, 155 Ind. 45; 7 Am. St. Rep.
ing Morrow v. Fossick, 3 Lea, 129. 403.
4 Atkins v. Saxton, 77 N. Y. 195; 9 Freeman on Executions, sec. 125;
§ 615.] PARTNERSHIP. 835
The Agency of Partners-Lord Wensleydale, in a leading
English case much quoted and approved in the United States,
said: “The law as to partnership is undoubtedly a branch of
the law of principal and agent, and it would tend to simplify
and make more easy of solution the questions which arise on
this subject if this true principle were more constantly kept in
view.” Mr. Justice Story lays it down in the first section of
his work on Partnership. He says: ‘Every partner is an agent
of the partnership, and his rights, powers, duties and obliga-
tions are in many respects governed by the same rules and
principles as those of an agent; a partner virtually embraces
the character of both principal and agent.’ Pothier says:
‘Contractus societatis non secus ac contractus mandaţi.”””
It requires the combination of agency with joint ownership
to constitute a pure partnership; but, as we have seen that
agency, and joint ownership also, may exist outside of the part-
Gerard v. Bates, 124 Ill. 150; Mechem,
Elem. of Partnership, sec. 100.
1 Lord Cranworth, in the same case,
said: “The liability of one partner
for the acts of his copartner is in
truth the liability of a principal for
the acts of his agent. Where two or
more persons are engaged as part-
ners in an ordinary trade, each of
them has an implied authority from
the others to bind all by contracts
entered into according to the usual
course of business in that trade.
Every partner in trade is, for the or-
dinary purposes of the trade, the
agent of his copartners, and all are
therefore liable for the ordinary
trade contracts of the others. Part-
ners may stipulate among them-
selves that some one of them only
shall enter into particular contracts,
or into any contracts, or that as to
certain of their contracts none shall
be liable except those by whom they
are actually made; but with such
private arrangements third persons,
dealing with the firm without notice,
have no concern. The public have a
right to assume that every partner
has authority from his copartner to
bind the whole firm in contracts
made according to the ordinary
usages of trade. This principle applies
only to persons acting openly and
avowedly as partners, but to others
who, though not so acting, are, by
secret or private agreement, partners
with those who appear ostensibly to
the world as the persons carrying
on the business.” Cox v. Hickman,
Supra.
2It is with deference submitted
that this statement, that partnership
is a branch of agency, is obiter, and
not sustainable. The two relations
are essentially different. The re-
lation of partners is sui generis, a
genus by itself quite distinct from
agency. The opinion of Lord Black-
burn in the same case is more
guarded, and is quite within the rea-
son of the matter. -
3 Pand., lib. 17, tit. 2, Introduction;
Cox v. Hickman, 8 H. L. Cas. 268;
Mechem’s Cases, 70, followed in
Beecher v. Bush, 45 Mich. 188; 40
Am. Rep. 465; Mechem’s Cases, 86;
State Bank v. Butler, 149 Ill, 575.
836 THINGS. [$ 615.
nership, it is plain that there is something peculiar about the
partnership in both these respects. This peculiarity is the man-
ner in which the ownership and agency are joined.
The feature of agency is no more the principal incident of a
partnership than is the joint ownership. |
It is improper, therefore, to state that one incident or feature
of several that must be present in a given combination to con-
stitute a whole is the principal incident or most important ele-
ment. Every element that is essential must be present; and
so in this case, while the idea of partnership cannot be under-
stood without comprehending and including the doctrine of
agency, the other elements should not be lost sight of or be
subordinated.
Dormant partners are equally bound with the active manag-
ing partners, in the same manner that an undisclosed principal
is held. It is not a question of giving credit on the faith of a
name, but a question of fact as to who is the firm."
Jiability by Holding Out.— Cases frequently arise where one
is held to be liable as a partner in a firm when, as a matter of
fact, there never has been any agreement constituting the re-
lation between the alleged partners.”
These are called partnerships by holding out. “Where a man
holds himself out as a partner or allows others to use his name,
then on principles of estoppel he cannot deny the character he
has assumed or permitted, and upon the faith of which third
persons have acted.” -
There must be a voluntary and actual holding out, either
express or by appearances, to the person seeking to enforce the
liability. It is not, however, necessary that the conduct alleged
to constitute holding out should have been known to other per-
1 “I take it that, as matter of law,
those who are partners in a trading
firm do confer upon those who are
permitted to manage the concern
authority to make all contracts
which, in the exigency of the busi-
ness, are necessary and proper and
customary. The prima facie author-
ity may be restricted by express
agreement, but unless those who
deal with the firm have notice of
this restriction, they are entitled to
hold all who are partners bound by
the prima facie authority conferred
On the manager, and that equally
whether the persons sought to be
charged were persons to whom the
creditors gave credit or dormant
partners of whose existence they
were unaware.” Cox v. Hickman, 8
H. L. Cas. 268.
2 Mechem, Elem, of Partn., § 69.
3 Mollwo, March & Co. v. Court of
Wards, L. R. 4 P. C. 435.
§ 615.] PARTNERSHIP. 837
sons or known generally, but the one seeking to enforce the
liability must have exercised reasonable prudence and must
have actually acted on the assumption and holding out." In
this way one may become liable to one person as partner who
is not necessarily so as to others who have not relied upon such
representations or conduct.
Whether there has been a holding out is a question of fact,
and the burden of proof is upon the person who seeks to fix the
liability.” -
Duty of Partners as to Fºrm. Business.--This doctrine of
agency draws with it the personal fiduciary relationship which
exists between the partners, the necessity for good faith and the
rules in relation to the liability of the firm on account of the
acts of the agent; while, because each partner is also a principal,
the doctrine of liability of partners for acts within the scope
of the firm’s business in which they have in no wise participated,
and which they have not sanctioned, obtains as a corollary.
Without any special agreement on the subject, each partner
is bound to devote his time and energy to the interests of the
firm business,” and, except under peculiar circumstances, neither
can charge the other for his services in the management of the
concern.” It follows that compensation for unusual and un-
equal services cannot be claimed or allowed on the ground of
the implied contract.” It is likewise a breach of the contract
to engage in any rival business. -
Even a surviving partner, who is winding up the affairs of
the concern, cannot make a charge for his services.” -
Scope of Authority.—The general principles of agency will
suggest the natural limitations upon the authority of partners.
1 Morgan v. Farrel, 58 Conn. 413; 18
Am. St. Rep. 282; Fletcher v. Pullen,
70 Md. 204; 14 Am. St. Rep. 355.
2 Fletcher v. Pullen, supra.
3 If he neglects this duty he may
be required to make good the loss to
the firm on an accounting. Marsh's
Appeal, 69 Pa. St. 30; 8 Am. Rep. 206.
4 Lewis v. Moffett, 11 Ill. 398;
Hanks v. Baker, 53 Ill. 292; Paine v.
Thacher, 25 Wend. 450; Marsh's Ap-
peal, Supra.
Caldwell v. Leiber, 7 Paige, 483.
6 Mechem, El. Partn., § 119. Cf. 1
Lindley, Partn. (Ewell's ed.) 775. On
the death of a partner all that the
surviving partner can be required to
do gratuitously is that he proceed
at Once to wind up the business and
render an account. If, however, with
assent of the administrator, he em-
ploys extra labor to finish existing
contracts, and even enters upon new
contracts, he is entitled to compen-
sation. Schenkl v. Dana, 118 Mass.
236; Willett v. Blanford, 1 Hare, 253.
838
, THINGS, [$ 615.
The general rule is clearly that the scope of the partnership
business must necessarily limit the power of the partner to bind
his firm, and the nature of the business must itself suggest other
limitations." - -
A partner cannot use the firm property, credit or money for
his individual benefit. He cannot bind the firm by giving the
firm note for his individual debt.” -
Third persons dealing with a partner, knowing that he is
handling the money of the partnership, cannot acquire title to
it unless through the instrumentality of some transaction in
which the firm is interested. -
This is true to even a greater degree as to firm property. It
has been held that a third person receiving partnership property
on account of an individual debt of one of the partners does
not acquire title to it, whether he has notice of the actual own-
ership of the property or not; * but the rule seems to be that if
he takes it in good faith without notice he gets title.”
The receipt of cash or currency is different, for the reason
that no one is required to inquire as to the title of the possessor
of money unless he is put upon notice.” - -
1 Marsh v. Gold, 2 Pick. 285.
2 Calkins v. Smith, 48 N. Y. 614.
3 Rogers v. Batchelor, 12 Pet. 221.
The implied agency of a partner ex-
tends only to the disposition of part-
nership property for partnership pur-
poses. - -
4Dob v. Halsey, 16 John. 34; 8 Am.
Rep. 293. -
5 “One partner cannot give away
partnership property or things pro-
cured by partnership money, and
the donee will be deemed to be a
trustee for the partnership and re-
Quired to account for such gifts. Nor
can one partner give a partnership
obligation in payment of his individ-
ual debt without the consent of the
Other partners. Nor can a partner
transfer or create a lien upon the
partnership property for the payment
of his individual debt to a creditor
who has knowledge that the property
so transferred or pledged is partner-
ship money. And this doctrine will
apply to partnership money paid by
One partner to his individual creditor,
if the latter knows that the money
belongs to the partnership.” Babcock
v. Wandish, 53 N. J. Eq. 376. In this
case the court also said: “The ques-
tion remains whether the doctrine ap-
plies when the partner uses not prop-
erty but money of the partnership in
the discharge of his individual debt.
In my judgment there is a marked dis-
tinction between the two cases. This
results not from the old notion that
money has no ‘ear marks,” but be-
cause money has the quality of cur-
rency, passing from hand to hand for
allboma fide transactions without the
necessity of inquiry on the part of
him who receives it to ascertain the
title of the party who pays it. When
the property thus passes, the recipient
may be put upon inquiry as to its
title. When money passes, no inquiry
§ 615.] PARTNERSHIP. 839
Sealed Contracts.--It was formerly a general rule that one
partner could not bind the firm by a contract under seal. The
tendency of modern times is to relax the strictness of the rule,
and it does not apply to contracts within the ordinary scope of
the business which are required to be under seal, such as com-
position deeds, or releasing debts which it is the business of each
partner to collect. If, without authority from the other mem-
bers, a partner executes in the name of the firm an instrument
to which a seal is necessary, such instrument is the deed of that
partner alone and does not bind the firm. But if the firm au-
thorized the execution and afterwards acquiesced in its opera-
tion, it is the deed of the firm.” º
Ziability for Torts.--All the partners are liable for the torts
of each committed while acting within the scope of the busi-
mess.” This may extend to torts with malice, such as libel and
slander.”
So, the firm may be liable for misrepresentation made in the
purchase of property, the innocent partner being answerable
for the fraud of his associates.” • +
Illegal Contracts.-‘‘The liability of a partner, arising out of
this implied assent and undertaking to be responsible for the acts
of his copartner on behalf of the firm in the ordinary business
and transactions thereof, cannot be held to extend to illegal
contracts. An agency or authority to a partner to violate the
provisions of a public statute cannot be implied; nor can it be
implied that such illegal act is within the scope of the partner
ship, which could only exist for lawful purposes.” But where
the contract is within the scope of the business carried on by
the firm, the agency to transact it, though in a sense implied,
is within the scope of the partnership business, and it will not
relieve one partner to show that he did not know of the par-
is required. In the former case, the
consequences of illegal transactions,
knowledge which inquiry would pro-
such as gambling contracts. Tenney
duce would charge the recipient; in
the latter case, nothing but actual
knowledge will charge him.”
1 Everit v. Strong, 5 Hill, 163.
2 Gibson v. Warden, 14 Wall. 244,
3 Stockwell v. United States, 13
Wall. 531. They are bound for the
v. Foote, 95 Ill. 99.
4 Van Aernam v. Bleistein, 102 N. Y.
355.
5 Chester v. Dickerson, 54 N. Y. 1;
Castle v. Bullard, 23 How. 172.
6 Hutchins v. Turner, 8 Humph, 415.
840
[$ 615.
THINGs.
ticular transaction."
must be observed.”
Of course the rule “ in pari delicto,” etc.,
JDissolution.— A partnership may be dissolved in various
ways.”
The relation being created by contract, it is obvious that it
can be dissolved in the same manner; that is, by the mutual
consent of the parties,
The partnership may expire by the terms of the agreement."
The death or disability of one of the parties naturally pre-
cludes the further continuance of the firm. A sale in good
faith by one partner of his interest in the firm works a dissolu-
tion.”
All of these are within the contemplation of the parties when
they enter into the contract.
JDissolution by Decree of Court.— A partnership may be dis-
solved by a court of equity against the consent of a party. One
party may be guilty of such a breach of the express or implied
terms of his contract as to justify a court in decreeing a disso-
lution." '
The usual causes for such a decree are any wilful acts or
fraud against the firm in direct violation of the articles of co-
partnership. Engaging in direct competition with his firm
1 Tenney v. Foote, 95 Ill. 99.
2 Amte, p. 784.
* A dissolution, in order to revoke
the authority of partners to bind the
firm in transactions with persons
who have been in the habit of deal-
ing with the firm, must be so open
and notorious as to give them actual
notice; but mere purchasers of nego-
tiable notes of the firm, who have
not dealt directly with the firm, are
not entitled to such notice. A letter
properly directed and posted would
be actual notice, but a newspaper no-
tice, though the paper were mailed,
is not actual notice. Hutchins v.
Bank, 8 Humph. 418.
4 “A provision in a partnership
contract in which the amount of
capital to be invested is limited to a
Certain sum, that in the event of the
death of either partner the business
shall be continued by the survivor
for a certain period, the estate of the
deceased partner to bear the same
share of the losses of the business as
would have been received and borne
by such partner had he lived, is noth-
ing more than an authority to the
survivor to continue an existing
business with the capital already
invested, and does not render the
decedent’s estate liable for debts con-
tracted in the firm name after his
decease.” Stewart v. Robinson, 115
N. Y. 328; 5 L. R. A. 410. See Phil-
brook v. Newman, 114 Cal. 635, 34
L. R. A. 265.
5 Murray v. Bogert, 14 Johns, 318.
6 A partner may make himself
liable in damages for a wrongful
dissolution contrary to a contract.
Bagley v. Smith, 10 N. Y. 489.
§ 615.] . . E*ARTNERSHIP. 841
would constitute a violation of the implied terms of the con-
tract.
If a number of the partners should exclude another partner
from participation in the management or profits of the busi-
ness, it would justify a court either in restraining them from
a continuance of such conduct or dissolving the firm and de-
Creeing an accounting.
Gross neglect of business or palpable mismanagement, per-
sisted in, would also be a ground for dissolution.
Incompatibility of temper, accompanied with frequent alter-
cations, would justify such a decree." -
A voluntary or involuntary bankruptcy of one of the part-
ners—in fact, anything which transfers his interest in the
business — would work the result.”
The breaking out of a war which would cause the partners
to bear the relation of alien enemies to each other, or which
would necessarily prohibit the business they were engaged in,
would dissolve the partnership.” -
Jºffect of Dissolution.— A dissolution of the partnership does
not immediately put an end to the partnership business or de-
stroy all of their relations.
The partners still continue joint tenants, with the right in
each to perform all such acts in the name of the firm as may
be necessary in winding up the business, liquidating accounts,
or collecting and paying debts. -
Each partner has the same power over the joint property as
he had before the dissolution, excepting that the object of the
power must be to close up the firm business.”
A dissolution by death vests the legal title of the partner-
ship property or effects in the survivor and renders him liable
to the extent of the property for all the debts."
As we have seen, his ownership is in trust, and he is in this
case obliged to dispose of the firm assets and close up the busi-
ness of the old firm; but this does not necessarily mean that
the business theretofore carried on shall be discontinued at that
place. # -
1 Bishop v. Breckles, 1 Hoff. Ch. 534, 4 Robbins v. Fuller, 24 N. Y. 570.
23 Kent, Com. 59. . Lawrence v. Tr. Leake & Watts
8 Bank of N. O. v. Mathews, 49 Orphan House, 2 Den. 577. -
N. Y. 12. - x º
842 THINGS. [$ 615.
The good will of the firm may be preserved and the business
perpetuated, and there are certain rules which protect the sur-
vivors. It consists in the probable benefit arising from reputa-
tion and continued use." It is connected with the same business
at the same place.”
It is well settled that the good will of the firm dissolved by
death is regarded as a valuable asset, which shall be offered and
disposed of in such a way as to make a portion of its value
available to the estate of the deceased partner, notwithstand-
ing the fact that he can no longer assist in carrying on the
business.”
Bights in trade-marks are anomalous and are subject to pres-
ervation and sale as a part of the business on dissolution by
consent,” by decree or by death.
Suits Between Partners.--The partnership contract is one
to engage in a fiduciary relation, to contribute time and money
and endeavor for a common profit; but there is no promise in-
volved which renders or may render one party a creditor of
the other in the first instance. Their duty, express or implied,
is to do all these things and account with each other.
It follows from this that one partner cannot sue another
partner in an action at law for a debt arising out of the busi-
ness until there is a neglect or refusal to account.
Partners may, by an account stated, create a relation of
debtor and creditor which will sustain a common-law action
for the money,” or they may sever their interest and contract
between themselves with reference to partnership property in
1 Rice v. Angell, 73 Tex. 350; 3 L. R.
A. 769; Mechem, El. of Partn., § 87.
* Mechem, Elem. of Partn., § 89.
3 Evans v. Evans, 9 Paige Ch. 178;
Dougherty v. Van Nostrand, 1 Hoff.
Ch. 68.
4 See Menendez v. Holt, 128 U. S.
514. The trade-mark is an asset and
an important element in the good
will of the business. Smith v. Walker,
57 Mich. 456. Where a partner re-
tires from a firm, assenting to or
acquiescing in the retention by the
Other partners of the possession of
the old place and future conduct of
the business under the old name, the
good will, including the firm mark,
remains with the latter, as of course.
Menendez v. Holt, supra. A firm
may trade under a fictitious or ar-
bitrary name, or under a personal
name made up of the names of the
partners. If the name be a personal
name, the continuing partner, under
the right of the good will, may not
use it unless such name has been
made a trade-mark. Mechem, Elem.
of Partn., § 86.
*If one partner gives another a
note it may be sued on. Gridley v.
Dole, 4 N. Y. 486.
§ 616. MASTER AND SERVANT. 843
such a manner that an action will lie for the breach of such a
contract."
So that the rule against partners suing each other is limited
both as to the subject-matter and the form of the suit.
They may sue in equity for a dissolution and account, or for
an accounting without a dissolution, or in matters which have
grown out of a partnership dealing, but which have gone fur-
ther and ripened into a cause of action distinct from the part-
nership business.” -.
Like reasons prevent the firm suing a partner; and there is
an additional objection, that the firm includes all, and one can-
not be both plaintiff and defendant. A partner suing the firm
involves the same objectionable features. -
SEC. 616. Master and Servant.— Another form of contract
under which individuals act for and with each other is a form
of association which passes under the technical name of master
and servant; and however much the general features and spe-
cific incidents of the relation have changed, it is not practical
or desirable that the name should be changed.”
The Wature of the Relation.— In the English law, even at
so late a time as when Blackstone wrote (1765), the relation of
master and servant had not entirely emerged from the condi-
tions which allowed it to be classed as a status. For this reason
he treats the subject under the law of persons, and the servant
was treated as in some measure of the household, bearing a per-
sonal relation to the master and under his dominion,” so much
so that the master might inflict a reasonable punishment; but
under our law punishment can only be inflicted where the par-
ties, stand in loco parentis.”
Wilson, who speaks of our law as it was after the Revolu-
tion, says: “The contract between a master and a servant
arises upon the hiring. If a servant is retained generally, with-
1 Sprout v. Crowley, 30 Wis, 187. Cooley's Blk. (3d ed.) 421. Upon a
2 Mechem, Elem. of Partn., § 134.
8 See Schouler, Dom. Rel. 599. The
great change in the nature of the
subject requires that it be treated
merely as a contract. See remarks
in Boysen v. Thorn, 98 Cal. 578; 21
L. R. A. 233.
42 Wilson's Works, pp. 330–333;
parity of reasoning, actions for de-
bauching a wife or enticing away
children were based upon the loss of
services. Ellington v. Ellington, 47
Miss. 341; Butterfield v. Ashley, 6
Cush. 249.
5 Schouler, Dom, Rel, 6.
844 THINGS. [š 616.
out expressing any limited time, the law will construe it to be
for a year." The reasonable foundation of this rule is that,
through the revolutions of the seasons, equality shall be pre-
served in the contract; that the master shall not have it in his
power to dismiss the servant when there is little work to be
done, nor the servant have it in his power to depart when there
is much.” The contract, however, may be made for any term
longer or shorter than a year.” If, during the term of the con-
tract, the servant become sick, this is a condition incident to
humanity. In his sickness the master is bound to take care of
him and provide for him; * nor can a deduction of wages be
made for the time during which he is detained from service.”
“If a servant marry, the marriage dissolves not the contract
to serve. If, without any reasonable cause, he depart from
1 Custom has modified the contract
in the case of menial servants, so
called, that is, domestics or farm
hands, so that the contract may be
terminated on a month’s notice; but
this rule is not universal. See au-
thorities in Adams v. Fitzpatrick, 125
N. Y. 124. An agreement to pay for
future services at the rate of a cer-
tain sum per year is not of itself a
hiring for a year, or for any definite
time. Prentiss v. Ledyard, 28 Wis.
131.
2 This rule, by its reason, is confined
to certain classes of servants. It is
said by Cooley not to have been
adopted in America, but this is put-
ting it too strongly. The rule no
doubt was as stated by Wilson, but
it has not survived, perhaps, in many
cases. See Cooley's Blk. (3d ed.) 425.
It is stated by able authority that
where there is a general hiring the
contract is understood to be for a
year, upon the reason stated by Jus-
tice Wilson. Story on Cont., sec. 962,
Quoted in Adams v Fitzpatrick.
3 If a party contracts to labor for
another, for a fixed period of time, at
a certain rate per month, the con-
tract is entire and he must fully per-
form, else he cannot recover; but if
payment was to be made from time.
to time, then he can recover on part,
performance. Hamlin, Hale & Co. v.
Race, 78 Ill. 425; Leopold v. Salkey,
89 III. 413.
4 The ancient reason for the rule
has ceased and the rule is changed.
Schouler, Dom. Rel. 617.
5 This rule, while in accordance
with the ancient law (Nichols v.
Coolahan, 10 Met. 449; Rex v. Mad-
dington, 2 Burr. 675; Bell v. Thomp-
son, 4 East, 546), has been modified in
modern times. The modern rule is
that a serious, permanent sickness
discharges the contract; but an en-
tire contract is conditioned upon this
contingency, and the servant may re-
cover according to the contract price
for what he has performed. If he
resumes his services, the master is
not obliged to pay for the time lost.
McDonald v. Montague, 30 Vt. 357;
Ryan v. Dayton, 25 Conn. 188; Wolf
v. Howe, 24 Barb. 174; Hillyard v.
Crabtree, 11 Tex. 264; Green v. Gil-
bert, 21 Wis. 400; Holmes v. Stum-
mel, 17 (Ill. 455; 11 Chi. Leg, News,
1887.
§ 616.] MASTER AND SERVANT.
845.
his service within the term for which he is retained, he can re-
cover no wages."
“A contract for services is on both sides personal, and is dis-
charged by the death of either of the parties.” This is the rule
at the common law.” ” - -
Because of the peculiar nature of the contract the English
courts allowed an action for enticing away servants, or for har-
boring them after they had quit the service of the master; for
the act of enticing, the form of the action was trespass, while
for harboring them it was case.”
The law allowing an action against a third person not a party
to the contract was peculiar to this contract. It was not until
a later time that the mere inducing of one person not a servant
to break his contract was actionable, and in those cases some
degree of force, fraud or malice must appear in the res gestab.”
The law at the present time cannot be said to be well settled.
Some courts still recognize the distinction between contracts
of service and ordinary contracts, and they reason upon the
ancient foundation." There is no more reason for holding one
liable for merely inducing a servant to quit his master's serv-
ice than there is for inducing any independent contractor to
break his contract.'
1 This is simply because of the en-
tirety of the contract, and the mod-
erm law is as pointed out ante,
sec. 603, pp. 759–60. Where it is stip-
ulated that in case of a disagreement
a boma fide disagreement is necessary
to entitle either party to put an end
to the contract, disagreement must
be for a reasonable and just cause.
Swanzey v. Moore, 22 Ill. 63. Directly
contrary, Durgin v. Baker, 32 Mo. 273.
*That is, in such a case a recovery
pro tanto could be had.
32 Wilson’s Works, 329.
4 Hart v. Aldridge, Cowp. 54 (1774).
In Lumley v. Gye, 2 El. & Bl. 216; 75
E. C. L. (1853), the court held a theat-
rical performer within the servant
Class. Anson says that the law of
England remained unsettled till 1881,
when it was settled in Bowen v. Hall,
6 Q. B. D. 439, on the broad ground
that any one who, intending to injure
another, induces a third person to
break a contract, is liable. Lord Cole-
ridge in a strong dissent gives an
elaborate history of the rule. See
Anson on Contracts (Knowlton’s 2d
ed.), *210.
5 Van Horn v. Van Horn, 52 N. J.
L. 284; Bowen v. Hall, supra; Mor-
gan v. Andrews, 107 Mich. 33; Wal-
den v. Com., 84 Ky. 312; Boysen v.
Thorn, 98 Cal. 578; 21 L. R. A. 253.
6 Heywood v. Tillson, 75 Me. 225;
46 Am. Rep. 373; Bixby v. Dunlap, 56
N. H. 456; 22 Am. Rep. 475.
7 Glencoe L. & G. Co. v. Hudson,
138 Mo. 439; Cooley, Elem. of Torts,
101. A statute of Mississippi forbid-
ding interference with contract of
service was held constitutional.
Hoole v. Dorroh, 22 S. Rep. 829.
846 THINGS.
[$ 616.
In our law the relation is greatly changed. We know no
such dependent class of individuals as menial servants." The
relation is purely contractual, and (except in case of . Seamen)
has no incidents of servitude.” For these reasons the subject
has been transposed from the department of personal relations
to the domain of contracts, and it will be found that all the
rights and obligations growing out of the relation depend upon
contracts express or implied.”
The obligation of the contract of service is to serve or respond
in damages, and only in very exceptional cases is there any
other remedy; but in no case can the party be compelled to
serve, though in these exceptional cases he may be enjoined
from performing for another.” - -
JDistinguishing Features.—The relation of master and serv-
ant is to be distinguished from that of agency, and from that
of an independent contractor, and also from that of partnership.
In some instances, as we have had occasion to notice, it is not
easy to distinguish a partnership from a contract of service,
e.g., where the employee receives his compensation out of the
profits.
There is considerable similarity between agency and a con-
tract of service, and the two principal maxims of each are com-
mon to both, namely: “Quº per alium facit Seipsum facere wi-
detur” and respondeat superior."
1 Cooley's Blk. (3d ed.), p. 425.
2 Boysen v. Thorn, 98 Cal. 578; 21
L. R. A. 233. No contract which in-
volves in it an enforceable obligation
to actually serve another can be spe-
cifically enforced, and a contract
which contemplates the disposal of
one's conduct and volition to an-
other person or his assigns for an
indefinite service is void. So in the
Massachusetts case a contract made
by an adult inhabitant of a foreign
country with a citizen of the United
States to serve him, his executors
and assigns, for five years, without
fixing the nature or the extent of the
service, but it being understood that
it was in the capacity of a domestic,
for $10 and customary freedom dwes
which may have been fixed by the
foreign law, and which contract may
have been valid by the foreign law,
was held to be invalid in Massachu-
setts. Parsons v. Trask, 7 Gray, 473.
Cf. Robertson v. Baldwin, 165 U. S.
275.
3 Walker, in his American Law,
treated the subject of agency as a
part of the topic of “Master and Serv-
ant,” but it is quite obvious that there
is a clear distinction.
4 De Rivafinoli v. Corsetti, 4 Paige
Ch. 270; Walcutt v. Gaskins, 18 Misc.
(N. Y.) 118.
5 “He who does an act through
the medium of another party is in
law considered as doing it himself.”
Broom’s Leg. Max. 816.
6 Let the principal be held respon-
sible. Broom's Leg. Max. 842.
§ 616.] MASTER AND SERVANT. 847
The distinction between the relation of agency and a con-
tract of service lies principally in the nature of the service to
be performed. The agent's principal duty is to negotiate con-
tracts between his principal and third persons; that is the typ-
ical ear-mark of agency.
The Occupation of a servant consists in the performance of
some act of Service for another under his directions as to the
time and manner of doing it.
An independent contractor is one who agrees to perform a
labor or service for another, but he is distinguishable from a
servant in this: that he is not in the performance of this labor
under the direction and control of the person hiring him."
The contractor has no duty of obedience, and the hirer is not
considered a Superior, and hence the maxim respondeat superior
does not apply. He is laboring on his own behalf, in his own
manner; hence the maxim Quº per alium facit per Seipsum.fa-
cere videtºur does not apply.”
The Duty of the Servant to the Master.—1st. The servant
owes the duty of obedience to the lawful demands of the mas-
ter or those whom he places in authority.”
In case of domestic services this obedience should be uni-
versally cheerful and respectful.
The nature of the service must, to a certain extent, govern
the necessity for sobriety and the right to insist upon the ob-
servance of certain rules as to personal habits.
2d. The exercise of care and diligence in and about the mat-
ter connected with the scope of his employment is equally in-
cumbent upon a servant or an agent; and further,
3d. Loyalty to the affairs of his master to the same degree
that would be required of an agent.
In many instances the master and employer is obliged to
trust the secrets of his business or trade to his employees, and
it is their duty to preserve inviolate these secrets and not to
communicate them to others, or to make use of them for their
own private gain. For a breach of this duty he may have an
1 Cooley's Elem, of Torts, 224; Cin- 2 Robbins v. Chicago, 4 Wall. 657;
cinnati v. Stone, 5 Ohio St. 38; Mor- Cooley's Elem, of Torts, 224.
gan v. Bowman, 22 Mo. 548; Illinois 3 Thompson on Neg. 1010; Thomp-
Steel Co. v. Schymanowski, 162 Ill. son v. Hermann, 47 Wis. 602; Illinois
460. Steel Co. v. Schymanowski, 162 Ill.
Ö4 460.
848 TEIIINGS. [$ 616.
action, and courts of equity will restrain a servant, under the
pains and penalties of contempt, from making disclosures, or
communicating facts, the knowledge of which has been ob-
tained through the course of employment. This extends to
secrets of title as well as of trade, or any other secrets of the
party important to his interest."
And it may be that, even after the relation of master and
servant has been severed, the courts will protect the master
and will prevent either the use or disclosure.”
So the use of compilations made in the course of conducting
commercial agencies may be protected, although not copy-
righted.”
4th. A servant engages to exercise care, diligence and skill,
and if he negligently causes loss, either by direct construction
or negligent performance, he is liable to make good the loss to
his master.
The duty of the master toward the servant is the duty of care
for his safety, and for a failure in its exercise he is liable to the
injured servant, even though other causes may have contributed
to the injury.*
He is not an insurer, but only obliged to exer-
cise the same degree of care he would for his own safety.”
The master is bound to furnish a reasonably safe place in
which to work."
He is bound to furnish reasonably Safe implements and ma-
chinery."
1 Story's Eq. Jur. 592; Peabody v.
Norfolk, 98 Mass. 459. -
2 Solomon v. Hertz, 40 N. J. Eq.
400; Fralich v. Despar, 165 Pa. St. 24;
Louis V. Snellie, 75 L. T. R. 226.
3 Carson v. Ury, 39 Fed. Rep. 777;
Eastman v. Reichenbach, 20 N. Y. S.
110; Little v. Gallus, 38 N. Y. S. 487.
4 Clyde v. Rich. & D. Ry. Co., 59
Fed. Rep. 394; G. T. Ry. Co. v. Cum-
mings, 106 U. S. 700; Pullman P. C.
Co. v. Laack, 143 Ill. 242.
5 Karr Supply Co. v. Kroenig, 167
Ill. 560.
8 But no duty can rest upon an em-
ployer to guard against every con-
fingency or to guarantee that acci-
dents shall not result to those in his
service. Fosburg v. Phillips Fuel Co.,
93 Iowa, 54. The age, construction
and state of repair of buildings and
the different methods of conducting
business must be taken into account
by a servant. Cooley's Elem, of Torts,
225.
7 Wilson v. Sioux M. Co., 16 Utah,
892; Monmouth Mfg. Co. v. Erling,
148 ill. 522. He does not warrant the
strength or safety of machinery or
appliances. Essex Co. Elec. Co. v.
ICelly, 57 N. J. 100. But he must ex-
ercise such care in selecting as every
prudent man is expected to employ
in providing himself with the con-
veniences of his Occupation. Ladd
v. New Bedford R. Co., 119 Mass. 412;
§ 616.]
849
MASTER AND SERVANT.
He is bound to select fellow-servants reasonably competent
and prudent."
He is bound, where the nature of the business requires an
overseer or superintendent, to select one who is reasonably com-
petent and prudent.”
It is his duty at all times to watch over and protect his serv-
ants from harm, and warn them of danger.”
Under this head several propositions may be laid down:
1. The master will be held responsible if, knowing of any
peril which is known to the servant also, he fails to remove it
in accordance with assurances made by him to the servant that
he will do so.”
2. The master may be guilty of negligence entailing liability
20 Am. Rep. 331; C. C. & T. C. Ry.
Co. v. Troesch, 68 Ill. 545; 18 Am. Rep.
548; Reilley v. Campbell, 59 Fed. Rep.
990.
1 Id.; Allen v. Galveston, H. & S.
A. R. Co., 14 Tex. 344. To continue
in the employment an incompetent
servant after his incompetency is
known, or, in the exercise of reason-
able care, might have been known,
“is as much a breach of duty and a
ground of liability as the original
employment of an incompetent Serv-
ant.” Gilman v. East R. Cor., 10
Allen, 233. There must not be un-
necessary delay. T. S. & M. S. R. Co.
v. Stupak, 123 Ind. 210; and see Nor-
folk & West. R. Co. v. Hoover, 79 Md.
258; 25 T. R. A. 710, and note; Cool-
ey’s Elem, of Torts, 228.
*If the foreman is negligent or un-
skilful in the exercise of these du-
ties, which are always the duty of
the master, the latter is liable.
Wenona Coal Co. v. Holmquist, 152
Ill. 581.
3 Stucke v. Orleans R. Co., 23 S.
Rep. 342. This is particularly true
of youthful and inexperienced serv-
ants, but the servant must use ordi-
nary care as in other cases. Macken
v. Alaska Ref. Co., 100 Mich. 276;
Chicago v. Maroney, 170 Ill. 520;
Railroad Co. v. Fort, 17 Wall. 553;
Fairbank v. Haentzche, 73 III. 236,
at p. 241 (bottom); A., T. & S. F.
By. Co. v. Plunket, 25 Kan. 188.
“The duty of an employer to give
instructions to one about to work
On dangerous machinery exists only
when there are dangers in the em-
ployment of which he has or ought
to have knowledge, and which he
has reason to believe his employee
does not know and will not discover
in time to protect himself from in-
jury. In the early cases the doctrine
was applied in favor of boys. In
favor of adults it should be applied
with great caution.” Stuart v. West
End St. Ry. Co., 163 Mass. 391.
4 Cooley's Elements of Torts, 228.
Where, on a special occasion, a mas-
ter agreed to look after the roof of
the mine in which his servant was .
working, and the evidence shows
that the servant was busy, with no
time to look after the roof, and does
not show that his attention was
drawn to the fact that the duty of
inspection was being neglected, he
cannot be said to be guilty of Con-
tributory negligence when injured
by falling rocks. Westville Coal Co.
v. Schwartz (Ill.), 52 N. E. Rep. 276.
850 THINGS.
[$ 616.
upon him in commanding the servant to go into exceptionally
dangerous places, or to subject himself to risks which, though
the servant may be aware of the danger, are not such as he
had reason to suspect were within the employment. This applies
with especial force to the case of an order given to a child of
immature years."
3. It is actionable negligence to expose persons to perils
which, though open to observation, they, by feason of their
youth or inexperience, do not fully understand and appreciate.”
These are among duties which he may employ another to
exercise; but in the discharge of such duties, that other, no
matter what his appellation be, is a vice-principal or alter ego —
he cannot be a fellow-servant. Such matters the principal can-
not delegate so as to divest himself of his responsibility.”
As a matter of course, the liability of the master is modified
by the rule, to be mentioned subsequently, that the servant is
to exercise care, judgment and prudence for his own safety.”
Practical Difficulties in Applying These Rules.—The omis-
sion of the master to exercise proper care for the safety of a
servant gives rise to a vast amount of litigation, but in most
instances the real master does not participate in the perform-
ance of the labor, or in the actual oversight of the service,
but leaves it to another, called in law his alter ego (other self).
The question is generally involved with the doctrine of vice-
principal, and in this manner its solution is rendered more
difficult. ‘...'
Another rule rendering the matter more complicated is the
one requiring of the servant the exercise of ordinary care for
l Houston v. Brush, 66 Vt. 331;
Cooley's Elem. of Torts, 227.
2 Hinckley v. Horazdowsky, 133 III.
359; 8 L. R. A. 490; Veginnman v.
Morse, 160 Mass. 143; Davis v. St. L.,
T. M. & S. R. Co., 53 Ark. 117; 7 L.
R. A. 283; Cooley's Elem, of Torts,
226.
3 Mullin v. Cal. Horse Shoe Co.,
105 Cal. 77; Cooley, Elem. of Torts,
229; C. & A. Ry. Co. v. May, 108 Ill.
288; Wolcott v. Studebaker, 34 Fed.
Rep. 8, note; Pullman P. C. Co. v.
Laack, 143 Ill. 254; Monmouth M.
Mfg. Co. v. Erling, 148 Ill, 522; Cor-
coran v. Holbrook, 59 N. Y. 517; 17
Am. Rep. 369; Ford v. Fitchburg R.
Co., 110 Mass. 240; 14 Am. Rep. 598.
“The negligent performance or omis-
sion to perform a duty which the
Tmaster Owes to his employees is at
Common law the negligence of the
master, whatever the grade of the
Servant who is in that respect care-
less.” Ell v. Northern Pac. Ry. Co.,
1 N. Dak. 336.
4 Cooley's Elem, of Torts, 230, and
cases cited.
§ 616.] MASTER AND SERVANT. 851
his own safety, which is always necessarily involved. In addi-
tion to these sources of confusion, in very many cases the in-
jury is sustained while the servant is engaged in some tempo-
rary work outside of the scope of the service he contracted to
perform, and outside of the duties he has been in the habit of
performing. When these combine in one case, as they fre-
Quently do, the solution is one of extreme difficulty to court
and jury.
The Fellow-servant JDoctrine.—A master is not liable to a
servant for injuries received from any ordinary risk incident to
the character of the services contemplated by the hiring. These
are assumed by the servant as impliedly a part of his contract.
Among these ordinary risks the courts have, by judicial rea-
soning in modern times, included the risk of injuries caused by
fellow-servants in the same line of employment."
No trace of such an exception to the general rule respondeat
superior is found in the English or American law prior to 1837.
This new rule constitutes an exception to the general rule
that the master is liable to any third person injured by his serv-
ant acting within the scope of his employment.”
Of this exception Sir Frederick Pollock says: “Our law can
show no more curious instance of a rapid, modern development.
The first evidence of it is in Priestly v. Fowler.”
“The reason of the rule is that the servant is implied to as-
sume the ordinary risk incident to his business, including the
risk of accidents caused by a fellow-servant.
“The theory of Priestly v. Fowler is that the master is not
bound to take more care of his servant than he may be reason-
ably expected to do of himself, and that a servant has better
opportunities than his master of watching and controlling the
conduct of his fellow-servants.” “
injuries caused by fellow-servants.
Whether it is an incident to the rule
1 The leading American case estab-
lishing the rule, Farwell v. Boston,
etc. Ry. Co., 4 Met. 49 (1842), is not the
earliest case.
2 Lalor v. C., B. & Q. Ry. Co., 52 Ill.
101. In Farwell v. Boston, etc. Ry.
Co., supra, it is treated as an incident
to the rule imposing ordinary risk
upon the servant, and the learned
Court said no exception existed as to
of assumed risks or an exception to
the rule respondeat superior depends
upon which is regarded as the prin-
cipal rule. Some confusion may be
avoided by regarding the difference
in this point of view.
33 M. & W. 1.
4 Webb's Pollock on Torts, 116.
852 THINGS. [$ 616.
Some corroboration of the reasoning of the English court is
found in the fact that three years later, and apparently without
reference to the English rule, the court of South Carolina
reached the same conclusion." •
The rule became firmly established by an elaborate decision
of the supreme court of Massachusetts,” and this exception to
the ancient rule respondeat Superior has given rise to a vast
mass of legal decisions.”
Who Are Fellow-servants."—This is a question as to which
no definite rule can be framed which will furnish a safe crite-
rion of decision. Each case depends largely upon the facts
and circumstances of that particular case. It is generally called
a question of fact for the jury,” but the courts generally decide
each case in the manner most suitable to attain a given end.
Those who, having a common master, are hired for the same
duties or habitually associate in the same line of employment,
are by all courts held to be fellow-servants. The difficulty in
determining the relation of employees of a common master
arises in several well-defined phases, which so frequently ap-
pear either separately or in conjunction that they are subject
to classification and have given rise to rules applicable to the
situation.
The Consociation, Rule.”—If servants of a common master
associate in labor for a sufficient length of time that it can be
reasonably said that the conduct of one can be judged and in-
fluenced by the other," the jury may hold them to be fellow-
Jurists and publicists differ as to
the reasonableness of the rule. See
Field’s opinion in C. & M. Ry. Co. v.
ROSS, 112 U. S. 383.
1 Murray v. S. C. R. R. Co., 1 McM.
T. R. 385, 36 Am. Dec. 268.
2 Farwell v. Boston, etc. Ry. Co., 4
Met, 49; 38 Am. Dec. 339.
3 The fellow-servant doctrine has,
however, been abrogated in at least
one state (Kansas), and has been
modified to a greater or less extent
in England and many states by stat-
utes known as “Employers' Liability
Acts.” -
4. It should be understood that the
same person may be a fellow-servant
and a vice-principal at the same time,
depending upon the character of the
act involved. C. & A. Ry. Co. v. May,
108 Ill. 288. *
à M. & O. Ry. Co. v. Massey, 152 Ill.
151.
6 The fact that servants of a com-
mon master habitually labor together
is not alone decisive. On the other
hand, that one habitually exercises
supervision is not decisive. C. & A.
By. Co. v. May, 108 Ill. 288.
7 It was said in Rolling Mill Co. v.
Johnson, 114 Ill. 57, that the servants
of the same master, to be co-employ-
ees so as to exempt the master from
liability on account of injuries sus-
§ 616.] MASTER AND SERVANT. 853
servants from the fact of such association. The nature and
extent of the association governs, and no fixed rule is estab-
lished. The association is but evidence from which the trial
tribunal may judge the nature of the relation at a particular
time." .
Who is a Vice-principal.—In the prosecution of enterprises
involving the labor of servants, it not infrequently happens
that the master does not participate in any degree in actually
performing the work, or in directing the time, place and man-
ner of doing it, but instead delegates his authority to others,
or intrusts them with it.”
The individuals to whom such authority is intrusted are
sometimes called foreman, boss, superintendent, Overseer and
the like; but these, under all circumstances, will necessarily be
a vice-principal. Nor does it destroy the character which one
occupies as a vice-principal that he may labor occasionally or
habitually with the servant. But such an employee may be a
vice-principal as to one act or service, and a mere servant as to
another service, and so possess two characters, according to
the nature of the act, at a given time.
A Vice-principal is one who exercises some One or more of
those special duties above enumerated.” -
Whether one is a vice-principal or merely a fellow-servant,
in relation to a matter in controversy," does not depend upon
the title, such as “boss,” “foreman,” etc., but upon the char-
acter of the power delegated, the duty imposed and the act per-
formed.”
tained by one resulting from the
Inegligence of the other, shall be di-
rectly co-operating with each other
in a particular business—i. e., the
same line of employment — or that
their usual duties shall bring them
into habitual association, so that they
may exercise a mutual influence upon
each other promotive of proper cau-
tion. Approved in C. & A. Ry. Co. v.
Hoyt, 122 Ill. 374.
1 C. & A. Ry. Co. v. Hoyt, 122 Ill.
369; Railway Co. v. Keary, 3 Ohio
St. 202; Railway Co. v. Lewis, 33 id.
196; Berea Stone Co. v. Krafts, 31 id.
292; N. P. Ry. Co. v. Hambly, 154
{U. S. 349.
2IPersons hired by a foreman act-
ing under authority from the man-
Clger, authorized by the owner to hire
employees, are the owner's servants.
Smaltz v. Boyce, 109 Mich. 382.
3 Ante, p. 848. It is not the differ-
ence in rank, but the character of the
acts in question, which determines
whether one employee is a fellow-
servant of another. Ell v. N. P. Ry.
Co., 1 N. Dak. 336. -
4 The inquiry should always be con-
fined to the specific point in the res
gestoe upon which the Case rests.
5 Cole Bros. v. Wood, 11 Ind. App.
37. The foreman of a gang of men.
employed by a railroad company,
854 THINGS. [$ 616.
There is a distinction between the ordinary detail labor
which a foreman does, and his duty of oversight or supervision,
and his duty of care and protection of those under him."
If a person is clothed with control over a business, or a de-
partment of business, as distinguished from a piece of work, he
is a foreman and vice-principal, and not a fellow-servant of the
employees. In this position the federal courts agree with all
the states.” .
Various tests have been suggested as to what will constitute
a vice-principal.” -
The question arises in its difficult form when the person who
is claimed to be a vice-principal labors with the Ordinary labor-
ers, and is in the habit of directing them in the manner of doing
their work.”
But the power to give instructions as to how to do work, or
when to do it, is not conclusive.”
If the act in question, whether it be an order or an actual
act of the alleged vice-principal, pertains to those duties which
cannot be delegated, and naturally in some manner involves
the element of care for the safety of the servants, such an act
and engaged in quarrying rock and
transporting it over the company’s
road for its use, who has full power
to employ, discharge and control
such men, is not a fellow-servant of
such employees, though such fore-
man is under the direction of the
road-master. McDonough v. Great
Northern Ry. Co. (Wash.), 46 Pac.
Bep. 334.
l Blomquist v. C. & St. P. R. Co., 60
Minn. 437; Brown v. Maxwell, 6 Hill,
592; Berea Stone Co. v. Krafts, 31
Ohio St. 292; C. & A. Ry. Co. v. May,
108 Ill. 288. -
2 North. Pac. Ry. Co. v. Peterson,
16 Sup. Ct. Rep. 843; Railway Co. v.
Baugh, 149 U. S. 368; N. P. R. R. Co.
v. Hambly, 154 U. S. 349; N. P. R. R.
Co. v. Keegan, 160 U. S. 259.
* A servant directed to take others,
selected by himself, and unload ma-
Chinery, is a vice-principal. Fraser
v. Schroeder, 163 Ill. 459; Wenona,
etc. Co. v. Holmquist, 152 Ill. 581.
4 In the following cases the fore-
man was working with the laborers.
when the injury took place, which
was held to result partly from the
giving of a negligent order as to how
the work should be done, and in each
the master was held liable: Berea,
Stone Co. v. Kraft, 31 Ohio St. 289;
C. & A. Ry. Co. v. May, 108 Ill. 300;
Canning v. McMillan, 55 Ill. App. 235.
When a foreman assisting is a fellow-
servant, see Hartford V. N. Pac. Ry.
Co., 91 Wis. 374; B. & O. Ry. Co. v.
Baugh, 149 : U. S. 368; Hanna v.
Granger, 18 R. I. 507; N. P. Ry. Co.
v. Hambly, 154 U. S. 349; Hastings v.
Montana, U. Ry. Co. (Mont.), 46 Pac.
Rep. 264. “If the act of the foreman
or boss in picking at the pile had the
effect of weakening the support of
the upper part of it, his conduct must
be regarded as the conduct of the ap-
pellant, the master.” Illinois Steel
Co. v. Schymanowski, 162 Ill. 455.
5 C. & A. Ry. Co. v. May. Supra.
§ 616.] IMASTER AND SERVANT.
S
* } 5
is the act of a vice-principal; if, on the other hand, the act per-
tains to an act of a mere operative, it is the act of a servant."
Scope of the Servant’s Assumption of Risk.-The servant as-
sumes the ordinary risks incident to his employment, but this
does not extend to the assumption of all risks in the service
which he may legitimately perform for his master.”
The first limitation upon the scope of his risk is that he only
impliedly engages to assume those risks within the scope of the
services contemplated by his contract and incident to the lines
of employment in which he habitually engages.”
These, whether they arise on account of the acts of the fel-
low-servants, or the ordinary dangers which attend the employ-
ment, he assumes; but the exemption of the master, which arose
upon the reasoning of Priestly v. Fowler” and Farwell v. Bos-
ton, etc. Ry. Co.,” does not extend beyond this.
Mr. Justice Breese, in a case universally approved, said that
where a servant is ordered by the master to do work outside
of his regular employment, and which is different in character
from that embraced in his regular contract of hiring and brings
him into association with a different class of employees, he does
not, in obeying such an order, necessarily assume the risks or
hazards incident to the new work."
l Crispin v. Babbitt, 81 N. Y. 516;
Railroad Co. v. Lahr, 86 Tenn. 341;
McElligott v. Randolph, 61 Conn.
157; Dube v. Lewiston, 83 Me. 211;
C. & A. Ry. Co. v. May, 108 Ill. 288.
* A servant’s implied assumption
of risks does not extend to more haz-
ardous work outside of his contract
of hiring; and where he is required
to do the more hazardous work, and
is injured while using defective tools
furnished by the master, he will be
entitled to recover, although the de-
fects were such that an experienced
person would have discovered them
by using care. Indiana Natural &
Tlluminating Gas Co. v. Marshall
(Ind.), 52 N. E. Rep. 232.
3 C. & A. Ry. Co. v. Hoyt, 122 Ill.
374,
*Supra; Rolling Mill Co. v. Johnson,
114 Ill. 57. -
*Supra. If, therefore, a common
laborer who attempts to perform a.
hazardous service temporarily, out-
side of his employment, upon request,
of the master, though not objecting,
is injured while performing such
duty, his apparent consent alone will
not defeat his right of recovery,
though the danger is apparent to a.
person possessed of skill, but not to a
common laborer. See also Railway
Co. v. Adams, 105 Ind. 165; Ferren v.
Railroad Co., 143 Mass. 197; Kain v.
Smith, 89 N. Y. 375; Mann v. Print
Works, 11 R. I. 152; Paule v. Mining
Co., 80 Wis. 356.
6 Lalor v. C., B. & Q. Ry. Co., 52 Ill.
401. In such cases it is not necessary
that the order to engage in outside.
service be given by the alter ego of
the defendant. It is enough if the
superior servant have in this respect.
856 THINGs. [$ 616.
It has often been urged that the servant should in such cases
refuse to go outside of his regular employment, or he should
refuse absolutely to perform a service which he himself can
recognize to be dangerous; but as is well stated by Judge
Cooley, the servant may reasonably assume that the master,
whose duty it was not to send him into danger, knew when he
gave the command that the dangers were not so great as the
servant had apprehended."
Where the master directs a mode of performance which the
servant may deem hazardous, the latter has the right to assume
that the former will not expose him to unnecessary peril, and
a right to rest upon the assurance that there is no danger which
is implied by the order.”
If, on the other hand, the servant voluntarily and of his own
choice performs the work in a difficult and hazardous manner,
or in the ordinary manner, the risks are his own.”
There may be services which are casual and seldom required,
but which are nevertheless within the hiring.”
ASeparate Departments of Service.—The true reason for the
exemption of the master from liability in cases of injury result-
ing from the negligent acts of fellow-servants is said by some
courts to be that the servant takes the risk into account when
he makes his contract of hiring, and must be presumed to have
fixed the wages with a view to such risks. Therefore, it is said
controlling authority. Chi. & N. W.
Ry. Co. v. Bayfield, 37 Mich. 212; Jones
v. Railway Co., 49 id. 573; Walker v.
Lake Shore & M. S. Ry. Co., 104 id.
606.
1 Cooley’s Elem. Of Torts, 227.
2 Ill. Steel Co. v. Schymanowski, 162
Ill. 460. The Illinois Supreme court
recently promulgated a rule curious
alike for its logic and its novelty. In
a case where the servant obeyed an
Order to perform an act confessedly
beyond the scope of his hiring and
beyond the usual occupation, it is
said: “The plaintiff's ordinary work
in the factory was making sausage
Casings, and when called upon to un-
load Salt he voluntarily, without any
objection whatever, undertook the
performance of that labor, and such
labor may therefore be regarded
within the scope of his employment.”
Gall v. Beckstein, 173 Ill. 187. Obvi-
ously the willingness or reluctance
does not change the fact of the scope
of employment which is fixed by the
Contract or the usual occupation.
What is meant in the authorities by
going voluntarily is going of one's
own motion, instead of in obedience
to the direction or command of the
master. Mechem on Agency, sec. 663.
3 Karr Supply Co. v. Kroenig, 167
Ill. 560; Brown v. Oreg. L. Co., 24
Oreg. 315; Wilson v. T. & S. Mills,
159 Mass. 154.
4 Abend v. T. H. & I. Ry. Co., 111
Ill. 202.
§ 616.]
MASTER AND SERVANT. 85'ſ
that men are fellow-servants when each of them is occupied in
service of such a kind that all the others, in the exercise of ordi-
nary sagacity, Ought to be able to foresee, when accepting em-
ployment, that it may probably expose them to injury in case
he is negligent."
All courts agree that the employees of a common master may
be engaged in departments of service so distinct that they are
not to be regarded as fellow-servants, and if the department is
separate they are not fellow-servants.”
The conflict in authority is in regard to different lines of
employment in the same department or same general service.
JDifferent Zºnes of Service in the Same Department or Same
General Service.—Where servants are engaged in a general
line of service, all co-operating for a common purpose, it is held
by some courts that even though the ordinary character of
their duties is quite different, they are still fellow-servants, and
it is said to be sufficient that the servant injured and the one
through whose negligence he is injured are engaged in the
same general business, working toward the same general pur-
pose.”
Other courts hold that such servants are not within the rea-
son of the rule and ought not to be considered as engaged in
a common employment.”
In practice, court and counsel must
1 Ewan v. Lippincott, 47 N. J. L.
192; Railroad Co. v. Triplett, 54 Ark.
289; Baird v. Pettitt, 70 Pa. St. 477;
Coal Co. v. McGuire, 3 Macq. 307.
2 N. P. Ry. Co. v. Peterson,162 U. S.
346.
& Farwell v. Boston & A. Ry. Co., 4
Met. 49; Holden v. Railroad Co., 129
Mass. 269; Brodeur v. Valley Falls
Co., 16 R. I. 448. A car-inspector is
a fellow-servant of the train-men.
Dewey v. Detroit & Gill Ry. Co., 97
Mich. 329. Brakemen on a regular
and conductor on a wild train are fel-
low-servants. N. P. R. Co. v. Poirier,
167 U. S. 48.
*Ryan v. Chicago, etc. Ry. Co., 60
Ill. 171; 14 Am. Rep. 32; Consolidated
Coal Co. v. Haenni, 146 Ill. 622. But
this view seems to..be contrary to the
weight of authority. See cases cited
in Northern Pac. Ry. Co. v. Smith, 8
C. C. A. 663, and note; Little Rock
& M. R. Co. v. Barry, 58 Ark. 198; 25
L. R. A. 386, and note. “It seems
clear the duties of the engine-driver
in connection with the train ceased
at or before the time it was plaintiff’s
duty to go upon it to begin his work
of inspection. On that hypothesis,
how is it possible the engine-driver
and plaintiff could be fellow-servants
engaged in a common service P In-
specting cars after they are delivered
in the yards can have no relation or
connection with the running of trains
to distant points. It is not the same
service at all. A car-inspector, under
such circumstances, is no more a
fellow-servant with an engine-driver
than any workman in the shops who
may have assisted, in the first in-
858 THINGS.
[$ 616.
determine which view obtains, according to the law of the place
of trial or locality where the res gestab arose.
Contributory Megligence.—The general rule under which the
master is liable for injuries suffered by an employee while en-
gaged in and about the business is subject to this further quali-
fication: that for an injury claimed to have been occasioned
by the master's negligence the servant cannot recover, if his
own negligence contributed with that of the master to produce
the injury." -
“Where the servant claims to recover on the ground of the
master's negligence, the burden of proof will be upon him, not
Only because, as a plaintiff, he must make out his case, but also
because all presumptions will favor the proper performance of
duty.”
This is based upon the ground that it is the duty of every
one to use ordinary care and diligence for his own safety. One
cannot recover for an injury if his own negligence contributes
thereto.
Degrees of Wegligence.—Degrees of negligence seem to have
been first thoroughly discussed and well established in the
great English case upon the law of bailments,” but they per-
vade every branch of the law.”
The Remedies of a Servant Against the Master. —For unlaw-
ful acts of violence committed by the master, or by another at
his direction or command, the form of action would be trespass.
Tor negligent acts, such as have been under discussion, the
usual action is trespass on the case, negligence being the gist
of the action.
Suits for Wages.—The right of the servant to recover wages
when the contract of service is only partly performed was dealt
with in a previous section, where the question of entire and
divisible contracts was discussed.”
stance, in making the car.” C. & A. Mo., K. & T. R. Co. (Tex. Civ. App.),
R. R. Co. v. Hoyt, 122 Ill. 374,
1 West, etc. Co. v. Adams, 55 Ga.
279; Cooper v. Butler, 103 Pa. St. 412.
Disobedience of rules provided to in-
sure the safety of employees is such
negligence. Ford v. C., R. I. & P. R.
R. Co. (Towa), 24 L. R. A. 657, and
cases cited in note. See also Fritz v.
30 S. W. Rep. 85. -
* Cooley's Elem, of Torts, 230.
3 Coggs v. Bernard, Ld. Raym, 909;
1 Sm. L. Cas, 369.
4 Negligence being one of the great
elements in many species of the ac-
tion on the case, it will be treated in
connection with that subject.
5 Amte, pp. 759, 760.
§ 616.]
MASTER AND SERVANT. 859
For a breach or failure to perform the terms of the contract
by the master several courses are open.
Where the contract provides for the payment of wages by
instalments, and the servant continues in the service, he may
sue for the instalments as they fall due."
As we have seen, a failure to pay does not constitute a dis-
solution of an entire contract.
For a wrongful act of the master which constitutes such a
breach as permits the servant to treat the contract as aban-
doned, he has an election or choice of two remedies:
First. It is said he may treat the contract of hiring as broken
and recover damages for its breach; but in such cases he treats
the contract as broken and sues for the damages, not for the
amount earned pro rata according to the price agreed upon.”
Second. He may treat the contract as rescinded on his part,
and sue on a quantum meruit for the value of services actually
rendered.”
Constructive Service.— Some courts have adopted a doctrine
known as constructive service, by which, if the servant holds
himself ready to perform and treats the contract as in full
force, he may wait until the end of the contract period and re-
cover the whole amount of the wages unpaid.
The doctrine seems to have been first promulgated in Gan-
dell v. Pontigny,” and has obtained in several of the states.”
The action proceeds upon the theory of a constructive per-
formance, and consequently is limited in the amount of dam-
ages to the wages due, less what the plaintiff might have earned
during the time when he was out of employment.
The doctrine is discountenanced in later English cases,” and
has been disapproved by the weight of authority in this coun-
try." *
1 White v. Atkins, 8 Cush. 367. The
right to require the sum earned is
5 Arnfield v. Nash, 31 Miss. 361;
Gordon v. Brewster, 7 Wis. 355;
not waived by neglecting to demand
it each month.
2 Amte, p. 760; Howard v. Daly, 61
N. Y. 362; Jones v. Dunton, 7 Ill. App.
580; Chamberlain v. McAllister, 6
Dana, 352.
3 Id.
44 Campb. 375.
Booge v. Pac. R. R. Co., 33 Mo. 212;
Fowler v. Armour, 24 Ala. 194.
6 Orchard v. Horner, 3 C. & P. 349;
Smith v. Hayman, 7 Ad. & El. 544.
7 Jones v. Dunton, supra; Howard
v. Daley, supra; James v. Allen Co.,
44 Ohio St. 226; Mitchell v. Scott, 41
Mich. 108. “If a person discharged
860 TEIIINGS.
[$ 616.
Anticipatory Breach.-By the case of Hochster v. De La Tour,"
it was decided that where there is a contract for service to
commence at a future day, and before the day arrives the con-
tract is repudiated by the principal, the other party may at once
bring action.
In a recent case in the federal court the rule was said to
be settled by an overwhelming preponderance of authority in
accordance with the rule of the leading English case just re-
ferred to.”
The master's liability to third persons for the acts of his serv-
ants is comparatively simple, and is limited to such acts as the
servant performs while acting within the scope of his employ-
ment; * but within this scope he * may be liable for frauds and
torts,” even such as are committed wilfully and with malice.”
If he intrusts to a servant an agency or instrument danger-
ous in its nature, he runs all the risks, irrespective of scope of
business."
from service may recover wages, or
treat the contract as still subsisting,
then he must remain idle in order to
be always ready to perform the serv-
ice. How absurd it would be that
one rule of law should call upon him
to accept other employment, while
another rule required him to remain
idle in order that he may recover
full wages. The doctrine of ‘con-
structive service’ is not only at war
with principle, but with the rules of
political economy, as it encourages
idleness, and gives compensation to
men who fold their arms and decline
service equal to those who perform
with willing hand their stipulated
amount of labor. Though the mas-
ter has committed a wrong, the serv-
ant is not for One moment released
from the rule that he should labor;
and no rule can be sound which gives
him full wages while living in vol-
untary idleness.” Howard v. Daly,
61 N. Y. 362–72.
12 El. & B. 678.
2 Marks v. Van Eeghan, 85 Fed. Rep.
853. See further, Kalkhoff v. Nelson,
60 Minn. 284; Davis v. Furniture Co.,
41 W. Va. 717. Contra, Daniels v.
Newton, 114 Mass. 530.
31McClung v. Dearborne, 134 Pa. St.
396; 8 L. R. A. 204; Lafitte V. N. O.,
C. & L. R. Co., 43 La. Ann. 34; 12 L.
B. A. 337. “If the servant wholly
for a purpose of his own, disregard-
ing the objects for which he was em-
ployed, and not intending by his act
to execute it, does an injury to an-
Other not within the scope of his em-
ployment, the master is not liable.”
Howe v. Newmarch, 12 Allen, 49.
4 Corporations are equally within
the rule.
5 See Cooley, Elem. Torts, p. 319.
6 Chicago, etc. Ry. v. West, 125 Ill.
320; East Counties R. Co. v. Brown,
6 Exch. 314; Goddard v. G. T. Ry.
Co., 57 Me. 202; 2 Am. Rep. 39; Stran-
ahan B. Co. v. Coit, 37 Ohio Law J. 3
(Dec., 1896).
7P. C. & St. L. Ry. Co. v. Shields,
47 Ohio St. 387; 8 L. R. A. 464,
§ 617.] SALES OF CHATTELS. 863.
SEC. 617. Sales of Chattels.- We have seen that an essential
attribute of property in things is the right to transfer and dis-
pose of them. One cannot have the perfect and complete title
unless he has this right."
The various usual and common methods of transferring prop-
erty or interests therein give rise to names suited to indicate
the manner of transfer.
When a chose in action is disposed of, the method of disposi-
tion is called an assignment.
Chattels are transferred by descent or purchase, and the
familiar modes of purchase recognized are sales and gifts, barter
and exchange; and as it is allowable to transfer special inter-
ests in chattel property without entirely extinguishing the
rights of the owner, so various names are assigned to these
common modes of transferring such interests, as mortgages
and bailments.
One may agree to furnish and deliver an article or com-
modity at a future date, and such contracts are sometimes
called sales, but improperly so, being but a contract to furnish
and deliver an article of a specific kind and quality.” Title
does not pass in such cases until the implied or express condi-
tions are complied with.”
The presence or absence of a consideration distinguishes a
sale from a gift or donation. -
A Sale Defined.— Properly speaking, a sale is an absolute
transfer of the ownership 'of an existing tangible thing for
money.”
Elements of a sale as between the parties to the contract.
The contract of sale must have all the elements of contracts
in general, and likewise its own peculiar features. The essential
elements of a bargain and sale” are: 1. Parties. 2. Mutual as-
sent. 3. The subject-matter: a thing, the absolute or general
property in which is transferred from the seller to the buyer.
4. Consideration: a price in money paid or promised."
| Wyneheimer v. People, 13 N. Y. between a sale and a bailment, see
278. Austin v. Seligman, 18 Fed. Rep. 520.
2 Butler v. Butler, 77 N. Y. 472. * “By the common law a sale of
* De La Vergne Ref. Co. v. N. O. & personal property is termed a ‘bar-
W. R. Co. (La. Ann.), 26 S. Rep. 455, gain and sale of goods.’” Benj. On
*Williamson v. Berry, 8 How. 544; Sales, sec. 1, note.
Benj. On Sales, sec. 1. For distinction 6 Gardner v. Lane, 12 Allen, 39.
862 THINGS. - [$ 617.
Only the features peculiar to sales need be noticed.
The Subject of Sale.— In order to constitute a sale there
must be a thing which is the subject of the sale in potential or
actual existence (otherwise it is in the nature of an executory
contract)."
When it is found that the thing sold has ceased to exist,
either at the time the contract was made,” or before the time
when it was to be executed,” or has not existed, the sale will be
regarded as a nullity.
Where a thing does not yet exist, or is not yet acquired by
the vendor, it may be the subject of an executory contract of
sale only. No title passes in such a case unless the contract
of sale becomes executed before the rights of third persons have
intervened.*
Things having a potential existence may be the subject of
sale and the title will pass immediately; that is, things which
in the ordinary course of nature will arise out of a thing in
existence, such as natural products of the soil, or expected in-
crease of animals, the property of which is in the vendor.”
For instance, a man may sell the yield of his orchard, a
growing crop," or a crop before planting," but he can make only
a valid agreement to sell where the property is to be after-
ward acquired, as in case he agreed to sell the wool of sheep
which he may buy within the year. The difference in these
cases is important; for in the former case the risk of loss is with
the vendee, in the latter it is with the vendor.” For example,
if one sell all the ice which shall form on his pond, and no ice
forms, there is no failure of consideration.” -
1 Thompson v. Gould, 20 Pick. 139; 5 Cotten v. Willoughby, 83 N. C. 75;
Allen v. Hammond, 11 Pet. 63. The Stephens v. Tucker, 55 Ga. 543; Lewis
thing sold must exist and the seller v. Lyman, 22 Pick. 437, 442, 443;
must have it. Thompson v. Gould, Heald v. Builders' Ins. Co., 111 Mass.
20 Pick. 139; Benj. on Sales, sec. 78. 38; Sanborn v. Benedict, 78 Ill. 309.
2 Strickland v. Turner, 7 Exch. 208; "Sanborn v. Benedict, supra.
Barr v. Gibson, 3 M. & W. 390; Allen 7 Rawlings v. Hunt, 90 N. C. 270.
v. Hammond, 11 Pet. 63. 8 Benj. On Sales, sec. 78; Allen v.
* Dexter v. Norton, 47 N. Y. 62; Hammond, 11 Pet. 63; Thompson v.
Carpenter v. Stevens, 12 Wend. 589. Gould, 20 Pick. 139; Heald v. Build-
* Cook v. Corthell, 11 R. I. 482; ers' Ins. Co., 111 Mass. 38.
Rowan v. Sharps' Rifle Co., 29 Conn. 9 Amte, p. 745, note 8.
283; Chynoweth v. Tenney, 10 Wis.
397; Chase v. Denny, 130 Mass. 566.
§ 617.] SALES OF CHATTELs. 863.
The Title of the Vendor.—The vendor must be the owner of
the thing sold. The general rule is that he can pass no greater
title than he has."
If he has a title, even though he obtained it in such a fraud-
ulent manner that the contract might be rescinded by the per-
son from whom he obtained the goods, he may, nevertheless,
pass a good title to an innocent third person; * but mere pos-
session is not sufficient in itself to constitute a title which will
protect even an innocent and bona ſide purchaser as against
the real owner, who has been guilty of no wrong or negligent
conduct amounting to an estoppel.”
The owner has a right, for many purposes, to trust the pos-
session of his property to third persons, and he does not risk
his title unless he in some manner either actually vests the
title or so acts that a third person would reasonably believe
that he had.* -
The purchaser must satisfy himself as to the title. Caveat
emptor (let the purchaser beware) is a rule of title as well as
of quality.” On the other hand, it is the general rule that a
warranty of the title is implied by the sale."
The Identity of the Subject of Sale.—The specific thing which
is the subject of transfer must be agreed upon and identified,
although the selection may be left to either of the parties or
to a third person.
If it consists of a portion out of a larger mass, it is essential to
complete transfer of title, even as between the parties, that the
specific articles be segregated and in some manner distinguished
from the mass."
For example, if an agreement had been consummated to sell
1 Deshon v. Bigelow, 8 Gray, 159.
Cf. Brundage v. Camp, 21 Ill. 330.
2 Fawsett v. Osborn, 32 Ill. 411; M.
C. Ry. Co. v. Phillips, 60 Ill. 190.
322 Am. Dec. 220. For a sister to
allow a brother to use her horse and
wagon in his business, and even paint
his name and business on the wagon,
is not such.negligence or misconduct
as will estop her. Larkin v. Parma-
lee, 69 Conn. 79.
* Title through an agent, or one
employed to sell on commission, can
only be opºned by a bona fide pur-
}
f
chase in the ordinary course of the
agent's employment or customary
dealing known to the principal.
Warner v. Martin, 11 How. 209; Con-
able v. Lynch, 45 lowa, 84; Parsons v.
Webb, 8 Greenlf. 38; 22 Arm. Dec. 220.
5 Coggill v. H. & N. H. Ry. Co., 3
Gray, 545; Sanders v. Keber, 28 Ohio
St. 640.
6 Cogar v. Burns Lumber Co. (W.
Va.), 33 S. E. Rep. 219.
7 Warren V. Buckminster, 24 N. H.
336; Smyth v. Ward, 46 Iowa, 339;
M. C. Ry. Co. v. Phillips, 60 Ill. 190;
864. THING.S.
[$ 617.
fifty sheep out of a flock of one hundred, an action would lie
for a breach; but until the particular animals had been selected
there could be no sale so that title became wested in the vendee.
Assent — Offer and Acceptance.—There must be a definite
offer and acceptance relating to some particular article or com-
modity." Nothing may be left open for further negotiation.*
An acceptance of an unconditional order for goods completes.
the sale. If the acceptance be of an order at a specified price,
and for delivery at a certain time, but without naming the quan-
tity, there is a contract for such an amount as is reasonably nec-
essary.” |
Mere advertising of property for sale does not constitute such
an offer as may be accepted without any preliminary negotia-
tions.
tiate and purchase.”
Such an advertisement is merely an invitation to nego-
Consideration—Price.—We have seen that, in order to consti-
tute a sale, the consideration for the transfer must be money.”
When the transfer of property is questioned by third persons
who stand in the relation of creditors or purchasers of the same
Ring v. City of Rochester, 39 Atl.
Rep. 256. . Weighing or measuring
the subject of sale is not essential
except when necessary to deter-
mine the subject-matter. Nash v.
Brewster, 39 Minn. 530. So long as
anything remains to be done to sep-
arate and identify the goods, title
does not pass. Andrews v. Deiterich,
14 Wend. 32; Scudder v. Worster,
11 Cush. 573; Warten v. Strane, 82
Ala. 311; Com. v. Hess, 148 Pa. St. 98;
17 L. R. A. 176. It is indifferent
whether the thing is to be done by
the vendor or vendee. Fuller v. Bean,
34 N. H. 300; Gibbs v. Benjamin, 45
Vt. 124; Sanger v. Thomasson, 44 S.
W. Rep. 408; Merch. Nat. Bank v.
Bangs, 102 Mass. 295.
1 Rohrbough v. Leopold, 68 Tex.
252; ante, pp. 717, 718. E. g.: S. wrote
to G., “How many rags have you on
hand, and your price for them 2 ° G.
replied, “We have about a ton. Our
price is three and one-half cents.”
S. answered, “We will take the rags
at the price you named.” It was
held that there was no sale because
there had been no specific offer.
Tiedeman on Sales, 36; Smith v.
Gowdy, 8 Allen, 566; Moulton v.
Kershaw, 59 Wis. 316; Johnson v.
Filkington, 39 Wis. 62. Assent may
be inferred. Ketchum v. Duncan, 96
U. S. 659. Where a worthless article
was sold as indigo, it was held there
was a mutual mistake and no Sale.
Welsh v. Carter, 1 Wend. 186.
2In Simpson v. State Bank of Cresco
(Iowa), 75 N. W. Rep. 554, a buyer
agreed to take certain goods, and Se-
lected and packed them in boxes and
put them in a separate room with
the understanding that he would re-
turn at a future time and take the
goods after satisfying the sellers as
to certain facts concerning the prop-
erty to be given for the goods. It
was held there was no sale.
3 Wells v. Alexandre, 130 N. Y. 642;
15 L. R. A. 219.
4.Ante, pp. 717–18.
* We are not treating gifts or forms
of transfer other than Sales.
§ 617.] SAILES OF CHATTELS. 865
property, it is essential that the consideration be valuable. Im-
pliedly the consideration is cash on delivery."
A mere sale on credit by one in failing condition to one who
knows his condition is not fraudulent.”
Voluntary conveyances, while good between the parties, are
invalid as against creditors. By a voluntary conveyance is
meant one without a consideration; and where one is not in-
debted or in embarrassed circumstances, he has a right to give
his property away.”
Pre-existing Debt as a Consideration — Conflict of Authority.
There is a direct, irreconcilable conflict of authority upon the
Question as to whether a pre-existing debt is a valuable consid-
eration for the transfer of chattels. It is based upon a differ-
ence of opinion as to what is public policy.
The same conflict extends to negotiable securities.”
The reasoning upon the one side which denies that the pre-
existing debt is a good consideration is that the creditor parts
with nothing for the transfer which should entitle him to a
preference over other creditors, and when it is applied to the
appropriation of the debtor's goods by a preferred creditor it
invokes the equitable principle that creditors should share rat-
ably in the assets of a failing debtor.
But preferences are not generally entirely forbidden unless
it be by a sale which exhausts the bulk of the property for the
benefit of a favored few.
In those states where a pre-existing debt is a valuable con-
sideration,” an insolvent debtor may prefer one creditor to the
exclusion of others; and a creditor who takes goods in satisfac-
tion of his debt obtains a good title if he obtains possession
before the lien of any other debtor attaches." .
Other jurisdictions, upon the reasoning above stated, refuse
to recognize a pre-existing debt as a valid consideration for
such a sale."
1 M. C. Ry. Co. v. Phillips, 60 Ill. 190. 5 Gray v. St. John, 25 Ill. 232; Sey-
2 Loeschigk v. Bridge, 42 N. Y. 44; mour v. Wilson, 19 N. Y. 417.
Ruhl v. Phillips, 48 N. Y. 128; Baugh- 6 Thornton v. Davenport, 1 Scam.
man v. Penn, 33 Kan. 507. 296.
8 See Story, Eq. Jur., 351–53 et seq. 7 The case of Schloss v. Feltus, 96
4 Coddington v. Bay, 20 Johns. 637; Mich. 619; 103 Mich. 525; 36 L. R. A.
Swift v. Tyson, 16 Pet. 1. 161, with the notes, shows the reason-
ing and cases pro and contra the rule.
866 THINGS. [$ 617.
Secret Trusts Are Void.—It is not allowable anywhere that
a debtor should transfer to a creditor a portion or all of his
property with the understanding that the creditor shall sell
the property, retain out of the proceeds sufficient to pay his
debts, and pay the surplus over to the debtor. Such a contract
is fraudulent and void as to the other creditors, irrespective of
the intention."
Any arrangement by which the debtor retains a secret inter-
est in any part of the property or its proceeds is void as to
creditors existing or subsequent.” -
In controversies with innocent purchaser and creditors, the
form of the conveyance must agree with its substance. An
absolute conveyance with a parol agreement that the transfer
is a mortgage is not good against third persons.”
Delivery is not essential as between the parties.* As between
themselves the title may pass and the goods, remain in the
hands of the vendor.”
In most cases, however, the sale is not
complete without delivery, unless there is an agreement to that
effect.
It is the exception that persons purchase articles and
leave them in the possession of the vendor."
Time When Change of Possession Must Take Place.—As to
creditors and subsequent purchasers it is a suspicious circum-
stance requiring proof of bona fides that the possession be al-
lowed to remain for any time
with the vendor;' but in most
1 Bump on Fraud. Convey. 213, 214;
Phillips v. Curts, 80 Ill. 1.12; Good-
rich v. Downs, 6 Hill, 439; Hanchett
v. Kimbark, 118 Ill. 121; Moore v.
Wood, 100 Ill. 451; Guffin v. Na-
tional Bank, 74 Ill. 256.
2 Selz v. Evans, 6 Bradw. 466; Co-
burn v. Pickering, 3 N. H. 415; 14
Am. Dec. 375; Hanchett v. Kimbark,
118 Ill. 121.
3 See next section.
4The parties may dispense with it.
Willingham v. Veal, 74 Ga. 756; Lord
v. Edwards, 148 Mass. 476; 2. L. R. A.
519. -
5. When the terms are agreed on,
the bargain struck, and everything
the seller has to do is done, the con-
tract is absolute, without payment
or delivery. Leonard v. Davis, 66 U.
S. 476; Warner v. Martin, 11 How.
201; Burton v. Curyea, 40 Ill. 320.
See Scudder v. Worster, 11 Cush. 573.
6 Hundley v. Webb, 3 J. J. Marsh.
641; 20 Am. Dec. 189. A telephone
order by a hotel-keeper for meat,
which is filled by bringing the meat
in a wagon and delivering it at the
hotel, is held in State v. Wernwag,
116 N. C. 1061; 28 L. R. A. 297, to be
a sale at that place, within the mean-
ing of a requirement of a license, al-
though the place to which the order
was sent and from which the meat
was brought was outside the district
for which a license was required.
7 Kenton v. Ratcliff (Ky.), 49 S. W.
Rep. 14; Second Nat, Bank v. Gilbert,
174 Ill. 485.
§ 617.] SALES OF CHATTELS. 86'ſ
cases, if the transaction is otherwise free from fraud, the pur-
chaser gets a good title if he obtains possession before the lient
of a creditor attaches, or any other purchaser gains possession."
It is a rule of the common law that possession shall accom-
pany and follow the agreement.” While conditional sales are
not condemned, and as to them delivery may await perform-
ance of the condition, where the sale is absolute, it is not ad-
missible to allow possession to remain with the vendor.
The only difference in the rule applied in such cases is as
to whether the sale is absolutely void or voidable.”
The change of possession must be of an unequivocal character,
accompanied by outward, open and visible signs, plainly indica-
tive of the change of ownership.” If the goods are easily capa-
ble of delivery they should be removed. If they are in use in
business or the article is cumbersome, outward symbols or signs
should be displayed. Everything which is in the nature of the
case practicable should be done to give notice of the change.
Keeping the vendor in charge as custodian, while a suspicious
circumstance, is not of itself sufficient to render the sale void,
1 Cruikshank v. Cogswell, 26 Ill.
366.
2 Edwards v. Harben, 2 T. R. 587.
3 Edwards v. Harben, 2 T. R. 587;
Hundley v. Webb, 3 J. J. Marsh, 641;
20 Am. Dec. 189. As to the Conflict
in opinion whether allowing the pos-
session to remain in the vendor ren-
ders the sale void or voidable only,
see Thornton v. Davenport, 1 Scam.
296; Dunning v. Mead, 90 Ill. 376;
Crawford v. Davis, 99 Pa. St. 576;
Dooley v. 'Pease, 88 Fed. Rep. 446,
holding such sale void. Contra,
Dempsey v. Gardner, 127 Mass. 381;
Miller v. Pancoast, 29 N. J. L. 250;
Carpenter v. Graham, 42 Mich. 191.
See Benj. On Sales, Corbin's note,
p. 641. When the sale is conditional
this rule does not apply. Hundley v.
Webb, supra. Mr. Tiedeman points
out which policy is adopted in the
various cases. Tiedeman on Sales,
Sec. 84a. t
4 Fraud in such cases is an infer-
ence of law, deduced from the nature
of the transaction itself, without re-
gard to the motives or actual inten-
tions of the contracting parties, for
the parties may have acted in the
utmost good faith. Tawson v. Funk,
108 Ill. 502; Lukins v. Aird, 6 Wall. 78.
The reason of the rule applies most
strongly to transfers of property be-
tween husband and wife (Wheeler v.
Selden (Vt.), 12 L. R. A. 600; McAfee
v. Busby, 69 Iowa, 328; Butler v. Ives,
139 Mass. 202), or near relatives. Law-
Son v. Funk, 108 Ill, 502. Where there
is a joint possession by the vendor and
vendee, the property is liable to an
attachment for the vendor's debts, if
a candid observer would not know
who had the chief control and posses-
sion. Flanagan v. Wood, 33 Vt. 332.
See Dooley v. Pease, supra; Stratton
v. Burr (Cal.), 54 Pac. Rep. 735; Fried-
man v. Holberg, 74 Mo. App. 26.
After the property has been in hands.
of the sheriff the rule does not apply.
Tillienthal v. Ballou (Cal.), 55 Pac.
Rep. 251.
S68 TEIIINGS. [$ 617.
provided such notice is given of the change as the circumstances
will admit."
Conditional Sales.— When questioned by third parties who
have extended credit upon the strength of the apparent title,
alleged sales stand upon a different basis than when the con-
test is between only those who are parties to the original agree-
ment. Such sales were allowed at common law.”
In some of the states it is held that where property is deliv-
ered to one under agreement that he shall pay for the same,
but that in the meantime the property shall remain in the
Original owner, the holder making partial payment as rent, or
otherwise, the title of the property as to third persons vests in
him who has the possession, and the original owner's interest
is rather in the nature of a lien.”
On the other hand, it is quite generally held that the trans-
action is not a complete sale, but a contract for a sale, and that
the vendor's title is still subject to execution,” and is not seizable
under distress for rent by the landlord of the vendee.”
Delivery to a carrier for the purpose of conveying the prop-
erty from their place of deposit in vendor's control to the
place designated by the purchaser is a common mode of de-
livery;" and unless there is something controlling in the terms
1 McTeer v. Huntsman (Tenn.), 49
S. W. Rep. 57; Billingsley v. White,
59 Pa. St. 464; Blumenthal v. Michel,
54 N. Y. S. 81.
2 Infra, p. 871, note 6.
8 Van Duzor v. Allen, 90 Ill. 499.
Lucas v. Campbell, 88 Ill. 447.
4 Everett v. Hall, 67 Me. 497.
5 Bean v. Edge, 84 N. Y. 510. Under
an agreement for the lease of certain
furniture providing for the payment
of certain sums as hire therefor, and
that no equity or title should vest in
the lessee until full compliance by
him with the covenants of the lease,
and upon such compliance the lessor
should sell the property to the lessee
for one dollar, providing also that in
case of default in payment, or of re-
moval of the property from a place
named, or of failure to redeliver at
the expiration of the term of hiring,
the lessor might, without demand
or notice, repossess himself of the
property, held, no title passed. Wall
v. De Mitkiewicz et al., 9 Ct. Ap. D. C.
109, following Harkness v. Russell,
118 U. S. 663.
6 See Butter v. Lawshe, 74 Ga. 352.
E. g.: The seventeenth section of the
Statute of Frauds requires that ex-
ecutory contracts for the purchase
of goods of above the value of £50
shall be in writing, unless certain
other conditions exist. This section
substantially is in force in Michigan,
but not in Illinois. One can readily
see, in a contract between residents
of these states respectively, how im-
portant the time when and place
where the title passes may become.
See Kuppenheimer v. Wortheimer,
107 Mich. 77. See, as to place of con-
tract, Tegler v. Shipman, 83 Iowa,
§ 617.] *SALES OF CHATTELS. 869
of the contract, a delivery to a carrier is a delivery to the
vendee," subject to his right to inspect, and subject to the right
of stoppage in transitu.”
Place of Sale.—Tt frequently becomes important to deter-
mine whether the title passes upon the delivery to the carrier
or at the place of destination, and where the title becomes
complete when the sale is conditioned upon inspection or tests.”
The general rule may be said to be, that title passes upon de-
livery to the carrier designated by the purchaser; or, where it
is the custom of the business so to deliver, subject to the right
of the purchaser to inspect.”
The Right to Inspection.—It will not do to say that in all
cases the title passes upon delivery, because the course of deal-
ing between the parties, or the contract itself, as in the case
of a sale by Sample or of a specific grade, may indicate that it
was not the intention of the parties that title should pass be-
fore inspection, and in such cases there is no assent until after
194; 11 Am. Rep. 120; Boothby v.
Plaisted, 51 N. H. 436; 12 Am. Rep.
140; De La Vergne Ref. Co. v. N. O.
& W. R. Co., 51 La. Ann. —; 26 S.
Rep. 455.
1 And the latter takes the risk of
loss or damage in transit. Baldwin
v. Doubleday, 59 Vt. 7; Mee v. Mc-
Nider, 109 N. Y. 500.
* Kelsea v. Ramsey, etc. Mfg. Co.,
55 N. J. L. 320; 22 L. R. A. 415. The
right of Stoppage in transitu merely
affects the right of the vendor to pro-
tection against insolvency or fraud
of vendee.
*This is generally a question of
intention. Almost always the pre-
sumption arising from conduct will
give way to intention, if that can be
ascertained. The question is one of
fact if the evidence leaves it at all
doubtful. Ala. G. S. R. Co. v. Mt.
Vernon Co., 84 Ala. 173; Emery's
Sons v. Irving Nat. Bank, 25 Ohio St.
360; 18 Am. Rep. 299; Kelsea v. Ram-
Sey, etc. Co., Supra, and note. But
where the quality is made a condi-
tion precedent or suspensory condi-
tion, title does not pass until that is
complied with. De La Vergne Co. v.
N. O. & W. R. Co., 51 La. Ann. ——; 26
S. Rep. 455.
4 Watkins v. Paine, 57 Ga. 50.
5 Falvez v. Richmond, 87 Ga. 99;
Ruppenheimer v. Wortheimer, 107
Mich. 77; Farmers’ Phosphate Co. v.
Gill, 69 Md. 537; 1 L. R. A. 767; Lord
v. Edwards, 148 Mass. 476; 2. L. R. A.
519. A purchaser cannot select such
goods as Suit and reject others out
of the bulk sold. Williams, Brown
& Co. v. Leslie, 66 Ill. App. 246; Con-
verse v. Harzfeldt, 11 Bradw. 173.
Where one purchases goods on ap-
proval, he must Ordinarily return the
goods next day, the distance being
only three miles. Young v. Argo, 40
Atl. Rep. 719. Where the testing re-
Quires a breaking of the package and
using of some portion, such breaking
and using do not constitute an ac-
ceptance. Gurney v. Atlanta G. W.
Ry. Co., 58 N. Y. 363; Benj. on Sales,
§§ 141, 484, 896; Wolf v. Dietzsch, 75
II]. 210.
870 THINGS. [$ 617.
a reasonable time to inspect." This is a rule which may op-
erate to the advantage of the vendor, and save his title even
after the right of stoppage has been lost.”
Warranty.— Very frequently complicated with the right to
inspect, which always exists, is the condition which may or
may not accompany a sale, namely, a contract by the vendor
that the goods shall be of a specific grade or quality. This is
called a warranty, or not, according to the circumstances under
which it is given.
If the goods are in existence and the sale is consummated at
the time of the promise, it is plain that such a stipulation is a
warranty;” but if the agreement is to deliver an article of a
specific quality, and the articles when produced are not of the
Quality or kind contemplated, the failure is not so much a
breach of the warranty as non-compliance with the contract.”
An agreement to return articles found not to be up to the
required standard is inconsistent with the idea of a warranty.”
1 Hargous v. Stone, 5 N. Y. 86;
Diversey v. Kellogg, 44 Ill. 114; Wolf
v. Dietzsch, 75 Ill. 205; Mann v. Ev-
erston, 32 Ind. 355.
2 Schloss v. Feltus, 96 Mich. 619;
103 Mich. 525; 36 L. R. A. 161, and
note.
3 A warranty must be contempora-
neous with the sale, or it must have
some new consideration. Hopkins
v. Tanqueray, 15 C. B. 130. A gen-
eral warranty usually does not ex-
tend to patent defects, but it may be
so expressed as to protect the buyer
as to them. Liddard v. Kain, 2 Bing.
183. In case of written sale, parol
evidence cannot be offered to prove
warranty. One may warrant a fut-
ure event, although the old rule was
otherwise. Upton v. Suffolk Co.
Mills, 11 Cush. 586; Pike v. Fay, 101
Mass. 134.
4 Reed v. Randall, 29 N. Y. 358;
Gaylord Mfg. Co. v. Allen, 53 N. Y.
519; Wolf v. Dietzsch, 75 Ill. 205;
Head v. Tattersall, L. R. 7 Exch. 7.
5 Nichols v. Guibor, 20 Iil. 285: Os-
born v. Stanley, 35 Ill, 103. Where
plaintiff bought a horse of defendant
warranted to have hunted with the
Bicester hounds, with privilege of
returning within specified time if
horse did not answer description, and
where horse was injured without the
negligence of the purchaser, and al-
though the plaintiff took the horse
away after having been told that it
had not in fact hunted with the Bi-
cester hounds, neverthless, after re-
turn of the horse, and upon suit,
brought for the recovery of the pur-
chase price, it was held that the
vendor was liable. Head v. Tatter-
Sall, L. R. 7 Exch. 7; 1 Moak's Ed.
140; Hunt v. Wyman, 100 Mass. 198.
There is a distinction in this respect,
between an executed sale and an
executory contract for a sale. In
the latter case the goods may gen-
erally be returned as soon as they
are found not to satisfy the contract.
Doan v. Dunham, 65 Ill. 512. So also
where a vendee purchases an article
for a certain purpose which is known
to the vendor, there is a warranty
that it is reasonably Suited to the
§ 617.] SALEs of cHATTELs. 871
jºr
Under such a contract, a right to return the articles is the
only remedy which the vendee has, and it must be exercised
within a reasonable time."
An agreement that certain articles shall be equal to a Sam-
ple, or shall be a specified quantity and to be delivered at a
future date, will not carry the obligation of warranty beyond
a reasonable opportunity for examination, and the examination
and acceptance is a waiver of defects.”
If, however, the stipulation takes the form of an express war-
ranty, it may survive inspection and acceptance.”
Where the inspection or trial necessarily consumes some of
the articles; receiving the packages, opening them and con-
suming a reasonable amount will not constitute an acceptance.
The question of reasonableness is for the jury to determine.”
If, after opening and testing, the vendee's offer to return is.
refused, he has a right to sell the goods for the best price he
can obtain, and is not liable to the vendor for any more than
he receives.” -
Conditional Sales — Validity Between Vendor and Vendee.—
Not infrequently the owner of chattel property delivers the
same to another person under an agreement to pay for it at a
future time,” either in instalments or otherwise, and that as.
purpose. Van Wyck v. Allen, 69 N.
Y. 61.
1 Horner v. Fellows, 1 Doug. (Mich.)
54; Osborn v. Stalnley, supra; Hull
v. Belknap, 37 Mich. 179; Lewis v.
Hubbard, 1 Lea, 436; 27 Am. Rep.
775. Y.
2 Doan v. Dunham, 65 Ill. 513;
Dutchess Co. v. Harding, 49 N. Y.
322; Locke v. Williamson, 40 Wis.
377. The nature of the article may
be such that inspection requires dam-
aging, and in such case, if most of
the goods are defective, while a few
submitted are perfect, the warranty
survives. Heilbutt v. Hickson, L. R.
7 C. P. 449; 3 Moak’s Ed. 328.
3 Dounce v. Dow, 64 N. Y. 411.
4 Benj. on Sales, 484; Gurney v.
Atlan, 58 N. Y. 363; Henkle v. Welsh,
41 Mich. 664.
* Chesterman v. Lamb, 2 Ad. & El.
Shields v. Pettie, 4 N. Y. 122.
129; Messerman v. New York Shot
Co., 40 N. Y. 422. If he has sold a
part before discovering the breach,
he may still rescind and return the
residue, and is liable for the market;
value of the amount consumed.
Ques-
tion of reasonable time is sometimes.
said to be controlled by printed or
written statements on the bills sent
with the goods, such as “that all
claims must be made within five.
days,” etc. Such statements, not
having had the assent of the vendee
before or at the time of the sale, are
of no effect. Morehouse v. Comstock,
42 Wis. 626.
6 Where the chattels are mot deliv-
ered there may be a conditional con-
tract of sale, and such condition may
be either precedent or subsequent.
For example of a condition precedent,.
:872 THING.S.
[$ 617.
between the parties themselves the title shall remain in the
original owner until payment is made; and the validity of such
contracts, or rather their equity as to preserving the title, very
frequently arises between the original parties and third per-
sons as well as between the parties themselves. The latter
Only is here contemplated. -
The weight of authority upholds the validity of such con-
tracts and preserves to the vendor his title," but some courts
recognize that these contracts are in substance nothing more
than a sale of the property, with attempt to preserve a lien upon
them to secure the payment of the purchase price, and conse-
quently hold them to be within the chattel-mortgage law,
which requires written evidence of such contract to be re-
COrded.” -
These courts look to the tendency of the transaction rather
than to its terms, and hold that it is against the policy of the
law that one should be clothed with the indicia of property
which he does not own.”
see De LaVergne Ref. Co. v. N. O. & W.
R. Co., 51 La. Ann. —, 26 S. Rep. 455.
“The doctrine as laid down in Shep-
pard’s Touchstone, 118, 119 and 120,
is that “It is a general rule that,
when a man hath a thing, he may
condition with it as he will. A con-
tract or sale of a chattel personal, as
an ox or the like, may be upon condi-
tion, and the condition doth always
attend and wait upon the estate or
thing whereunto it is annexed; so
that although the same do pass
through the hands of an hundred
men, yet it is subject to the con-
dition still.” In Patton v. McCane,
15 B. Mon. 555, the court say that a
sale with delivery of a chattel at a
fixed price, to be paid at a future
day, but, until paid for, the title to
remain in the vendor, does not vest
the property in the vendee as to
-Creditors or third persons; . . .
that the payment of the money is,
by such contract, a condition pre-
cedent that must be complied with
before the title passes; and reference
is made to Barrett v. Pritchard, 2
Pick. 512; Long on Sales, 109; 3
Campb. 92; Chisk v. Wood, Hard.
532.” Brundage v. Camp, 21 Ill. 329.
Whether by delivery the condition
is waived is a question of intention,
to be decided in view of all the cir-
cumstances, including previous deal-
ings. Adams v. Roscoe Lumber Co.,
159 N. Y. 176.
1 Harkness v. Russell, 118 U.S. 663;
Segrist v. Crabtree, 131 U. S. 287.
Such sales were valid at common
law. Edwards v. Harber, 2 T. R. 587.
See ante, p. 868, and note 5. The
vendor, where there has been such a
sale, may, on failure of payment by
the vendee, treat the sale as absolute
and sue for the price or retake the
property. Smith v. Barber (Ind.), 53
N. E. Rep. 1014; Redevill v. Gillen,
4. N. M. 78.
2 Hervey v. Rhode Island Loc.
Works, 93 U. S. 664; Everett v. Hall,
67 Me. 497; Bean v. Edge, 84 N. Y.
510; Tufts v. Brace (Wis.), 79 N. W.
Rep. 114.
3 See “Validity as between third
parties,” ante, p. 868.
§ 617.]
SAILES OF CHATTELS. 873
Fraud in the Purchase.— The rule that fraud vitiates and
renders void or voidable everything into which it enters ap-
plies to the contract of sale, and if a vendee obtains the assent
of the vendor by fraud, the vendor may rescind the sale and
recover his property, unless it has passed into the hands of an
innocent purchaser."
The only difficulty in such cases is to determine what consti-
tutes fraud, and of course the question as to the matter of title
Only arises where the sale is upon credit.
Where a purchaser who is insolvent fraudulently conceals
his condition or misrepresents it,” and intends not to pay for
the goods, the cases seem to be unanimous that such a purchase
is fraudulent; but the rule does not extend so as to render fraud-
ulent all purchases after the party is insolvent, if he has a bond,
Jide intention to pay, and is not guilty of any fraudulent con-
cealment or misrepresentation.”
Validity as to Third Parties.— One who is engaged
in busi-
ness, although he may be said to have the absolute right to
property in the things he possesses, is not entirely untrammeled
in his rights of disposition.*
The law recognizes that men obtain credit on the strength of
what they possess, and there is an implied obligation, enforce-
able by the processes of the courts, to devote one's property to
1 Schloss v. Feltus, 96 Mich. 619; 103
id. 525; 36 L. R. A. 161, note.
2 Representations as to credit given
to mercantile agencies are recognized
as representations to all who deal. On
the strength of them. Eaton, Cole
& B. Co. v. Avery, 83 N. Y. 31; Hinch-
man v. Weeks, 85 Mich. 535. If a
considerable time elapses after a mer-
chant has made a truthful represen-
tation of his standing to a commercial
agency, and no new representations
are made, he is not guilty of actual
fraud unless he knows, or circum-
stances are such that he should know,
that the credit he obtained is ex-
tended on the strength of the rating
of the commercial agency. Strick-
land v. Willis, 43 S. W. Rep. 602. The
question is one largely of intention.
Talcott v. Henderson, 31 Ohio St. 162.
An intention is ordinarily to be in-
ferred from conduct and circum-
stances. But to constitute a fraud
which will avoid the contract there
must be a definite, conscious intent
not to pay. Watson v. Silsby, 166
Mass. 57, quoted approvingly in Syra-
cuse Knitting Co. v. Blanchard, 43
Atl. Rep. 637; Schloss v. Feltus, supra.
The jury may infer an intention not
to pay from the circumstances and
conduct of the purchaser in respect
to the sale in question and other
transactions of the same time. Miller
v. White (W.Va.), 33 S. E. Rep. 332.
3 Schloss v. Feltus, supra; Hall v.
Naylor, 18 N.Y. 588; Donaldson v. Far-
well, 93 U. S. 631; Merwin's Equity,
Sec. 507; Leon v. Goldschmidt, 69 Ill.
App. 22.
4 Seymour v. Wilson, 19 N. Y. 417.
874. THINGS.
[$ 617.
the payment of his just debts; and under many circumstances
a sale of one's property is regarded as fraudulent in law and as
against the rights of creditors."
All sales must be bona fide and for value. The statutes of
most of the states provide that every sale made with the intent
to hinder, delay and defraud creditors is void; and this statute
may be violated by a sale to a third person for full considera-
tion if the intention is, on the part of both purchaser and vendor,
to delay or defraud creditors.” -
There must be more on the part of the buyer than mere
knowledge that the sale will delay creditors. He must partici-
pate in the design. The owner has the right to sell and a
stranger to buy, even after known insolvency.”
Formalities of a Sale.— In the law of real property, it will
be said that estates in land lie in grant or in livery, meaning
thereby that certain formalities must accompany the transfer.
Chattel property, however, is not regarded of so permanent
and important a nature as to require any special formality in
its transfer, and consequently there is no technical form of deed
recognized as a muniment of title to chattels, excepting in case
of interests in chattels which are held by those persons not in
possession; that is, chattel mortgages.
It follows that a bill of sale of chattels is not necessary, and
generally is not recognized as a document which may be re-
garded, or which amounts to proof of the transfer of title of
any higher degree than the agreement of the parties.
The ownership of chattels is transferred by the agreement of
the parties. -
The Statute of Frauds.-It is true that for the protection of
third persons it has been deemed necessary, where possession
does not accompany the transfer, to require some formalities;
so the seventeenth section of the English Statute of Frauds pro-
vides that no sale of chattels of the value of £10 or more shall
be good, except the buyer accept a part of the goods so sold,
1 Seymour v. Wilson, 19 N. Y. 417.
2 Cadogan v. Kennett, Cowp. 432;
Randall v. Vroom, 30 N. J. Eq. 353;
Story, Eq. Jur., sec. 353; Bump on
Fraud. Convey., sec. 198. These stat-
utes are in the most part but declar-
atory of what was the common law.
Per Lord Mansfield, Cadogan v. Ken-
nett, supra; Story, Eq. Jur., Sec. 352.
3 Loeschigk v. Bridge, 42 N. Y. 421;
Ruhl v. Phillips, 48 N. Y. 128; Baugh-
man v. Penn, 33 Kan. 507.
§ 617.] SALES OF CHATTELS. 875
and actually receive the same," or give something in earnest *
to bind the bargain, or in part payment; or that some note or
memorandum accompany the sale, precisely as is required in
the fourth section.”
In those states which date their common law from the fourth
year of King James IV this statute is not in force.
Certain portions of the statute have been adopted; but this
section is not so universally adopted as is the fourth section.*
In other states, dating their common law from a later period
(generally some point of time during the Revolution), the stat-
ute is the law except as repealed.”
The receipt and acceptance or delivery of part of the goods
completes a sale even in those states where by the statute such
executory contract of sale must be in writing."
But if any-
thing remains to be done to complete the sale in such cases, a
delivery for transportation, inspection, etc., is not sufficient."
Stoppage in transitu is the right which the vendor of goods
has to resume possession of such goods at any time before act-
ual or constructive delivery to the vendee, or his agent, and to
hold the same until the purchase price is paid.”
l Acceptance and actual receipt of
part of the goods, however small, is
sufficient. Garfield v. Paris, 96 U. S.
557. Receipt of the goods by a carrier
is not sufficient to take the case out
of the statute (Caulkins v. Hellman,
47 N. Y. 449; 7 Am. Rep. 461; Haus-
man v. Nye, 62 Ind. 460; 30 Am. Rep.
199), unless the carrier is especially
designated by the buyer, or the lat-
ter receiver the goods and treats
them as his own. Spencer v. Hale,
30 Vt. 314; 73 Am. Dec. 309; Morton
v. Tibbett, 15 Q. B. 428, and cases
cited in note to Kelsea v. Ramsey &
Gore Co., 55 N. J. L. 320; 22 L. R. A.
426, 427. -
2 Earnest money is little regarded
at the present time. Cotton Cases,
22 Wall. 195.
3 Where work and labor has to be
done on an article before it will be
accepted, the contract is not regarded
as a Sale and consequently not within
the statute. Finney v. Apgar, 15 N.
J. L. 270; Goddard v. Binney, 115
Mass. 454; 15 Am. Rep. 112. Some
Courts make a distinction in this re-
spect between goods in existence and
goods to be manufactured. Deal v.
Maxwell, 51 N. Y. 652; Cooke v. Mil-
lard, 65 N. Y. 352.
4. It was never adopted in Illinois.
See Starr & Curtiss’ Statutes, Ch. 59;
Rhea v. Riner, 21 Ill. 526.
5 Huntley v. Huntley, 114 U. S. 394.
6 Joseph v. Struller, 54 N. Y. S. 162.
7 Nugent v. Beakes, 54 N. Y. S. 486;
Butler v. Butler, 77 N. Y. 472.
8The earliest reported case where
the right is recognized is Wiseman
v. Vandeputt, 2 Vern. 202, in chan-
cery, 1690. For a history of its origin,
see Gibson v. Carruthers, 8 M. & W.
321; 11 L. J. Ex. 145; Blackburn,
Cont. Of Sales, 228. The great ruling
case is Lickbarrow v. Mason, 2 Term,
63 (1787). See Turner v. Trustees, 6
Exch. 543; 4 Eng, Rul. Cas, 725, notes.
S76 THINGS. [$ 617.
The privilege is a practical application of that rule of con-
tract by which either party may withhold performance on the
other becoming unable to perform his part."
It has been said that it is the enforcement of a lien which
the vendor has upon the goods for the unpaid purchase-money,
and this is accurate in that there is no rescission of the original
sale.”
It had its origin in equity, but was subsequently adopted by
the common law.”
Three things are necessary in order that the right of stop-
page in transitu may be exercised: 1st. The buyer must be in-
solvent. 2d. The goods must have been bought on credit; and
3d. The goods must not have reached the possession, either
actual or constructive, of the buyer.
Rnowledge of the insolvency of the purchaser must come to
the vendor after the goods have been shipped." It is not re-
quired, however, that the insolvency should have taken place
after the sale, nor is it necessary to show a technical insolvency.”
It is sufficient that the vendee is unable to meet his obligations.
The Goods Must Have Been Sold on Credit.—If a part only
of the purchase price has been paid,” or if notes or bills have
been given in satisfaction of the price, unless the latter have
by agreement of the parties been given and received in absolute
payment for the goods, the right of stoppage in transitu is not
affected."
The Goods Must be in Transit.—Detention of the goods be-
fore shipment is not a stoppage in transitu, but a refusal to
deliver; and if they have reached the possession, either actual
or constructive, of the vendee or his agent, the right is lost.*
1 Benedict v. Schawettle, 12 Ohio
St. 515; Gibson v. Carruthers, 8 M. &
W. 337.
2 Rowley v. Bigelow, 12 Pick. 312.
3 Smith’s Mer. Taw, 279, note.
4 Buckley v. Stickney & Furniss, 15
Wend, 137; Fenkhausen v. Fellows,
29 Nev. 312; 4 L. R. A. 732; Farrell
v. Richmond & D. R. Co., 102 N. C.
390; 3 L. R. A. 647.
5 Tiedeman on Sales, 135.
6 Jordan v. James, 5 Ohio, 88.
7 Newhall v. Vargas, 13 Me. 103;
Clapp v. Sohmer, 55 Iowa,273. Where
the consignor is indebted to the con-
signee in a sum exceeding the value
of the goods, the right does not arise.
Clark v. Maurin, 3 Paige, 373–76.
8 Lickbarrow v. Mason, 2 T. R. 63;
Parrell v. Richmond & D. R. Co.,
supra; Hall v. Dimond, 63 N. H. 565.
Where goods on reaching the place
of destination come into the posses-
sion of mortgagees, who are in pos-
session of consignee's store, this is
not a delivery to the consignee, and
§ 617.] SALES OF CHATTELS.
877
The transit begins when the goods are delivered to a com-
mon carrier for the purpose of transportation to their destina-
tion, and ends when the carrier parts with the possession and
control of the goods to the vendee or his agent. In other words,
the goods are in transit so long as they remain in the hands of
the persons concerned in their transportation." -
The arrival of the goods at the place of destination does not
put an end to the right while they remain in the custody of
the carrier or warehouseman.”
The right ends, however, when the goods come under the
direction and control of the vendee or his agent, even though it
be an intermediate place of deposit, where they are to remain
until given some new direction or impulse by the vendee.”
A delivery of a part of the goods does not cut off the right
as to a residue “unless the circumstances show that such deliv-
ery was intended to operate as a delivery of the whole.”
But where the buyer intercepts and takes possession of the
goods or sells and delivers them to another party, the right is
cut off;" but to defeat the right the purchase must be for value
and without fraud."
Who is Entitled to Eºcercise This Right.—The right may be
exercised by the vendor or his agent,” or factor or purchasing
agent who buys and sells goods on his own credit for his
principal.”
It has been held that the right may be exercised by one ad-
vancing money to the owner of goods and receiving from him
an assignment of the bill of lading as security for his loan."
the right is not lost. Kingman &
Co. v. Denison, 84 Mich. 608; 11 L. R.
A. 347.
1 Harris v. Pratt, 17 N. Y. 249.
2 Kitchen v. Spear, 30 Vt. 545.
Where goods are imported from
abroad, the right ends as soon as
the goods are entered at the cus-
tom-house and deposited in a public
house, the purchaser taking the usual
receipt. Mottram v. Heyer, 1 Den.
483; Id., 5 Den. 629.
3 Guilford v. Smith, 30 Vt. 49;
Whitehead v. Anderson, 9 M. & W.
518. i.
4 Buckley v. Stickney & Furniss,
15 Wend. 504,
5 Jeffries v. Fitchburg R. Co., 93
Wis. 250; 33 T. R. A. 351.
6 Walter v. Ross, 2 Wash. C. C. 287.
And see Southern Ex. Co. v. Dickson,
94 U. S. 552; Lee v. Kimball, 45 Me.
172.
7 Harrison v. Pratt, 17 N. Y. 249.
8 Benj. On Sales, secs. 833, 834 et seq.
9Newhall v. Vargas, 13 Me. 103; 29
Am. Dec. 489.
10 Gossler v. Shepler, 5 Daly (N. Y.),
476.
878 THINGS. [$ 618.
A mere surety for the purchase price, however, cannot exer-
cise the right, even though he may be entitled to a commission."
Płow Eºcercised.— Notice of such stoppage must be served on
the carrier having custody of the goods.
The effect of stoppage in transitu is to put the vendor and
vendee in the same position as before the goods were shipped.
The vendee may demand the goods, and, on payment of the
purchase price, receive them.”
The carrier's lien for charges is superior to the vendor's
right of possession.”
JHow Defeated.— Only a bona fide assignment of the bill of
lading for value will defeat the vendor's right of stoppage.* A
seizure on process by a creditor will not have that effect. A
mere sale of the goods transfers no better title than the seller
has, and does not defeat the right.”
SEC. 618. Mortgage of Chattels."—The right of the owner
to dispose of his property absolutely includes the right to make
a disposition of any interest in it for any special purpose which
may suit his interest or convenience, subject to the paramount
right of the state to regulate the mode of holding and transfer
of property."
1 Sifken v. Wray, 6 East, 371.
2 Newhall v. Vargas, 13 Me. 93;
Rucker v. Donovan, 13 Kan. 251.
3 Potts v. N. Y. etc. R. R. Co., 131
Mass. 455.
4 Lickbarrow v. Mason, 2 T. R. 63;
4 Eng. Rul. Cas. 756; Newhall v. Cent.
Eac. R. Co., 51 Cal. 345; 21 Am. Rep.
713; Dows v. Perrin, 16 N. Y. 325;
Emery v. Irving Nat. Bank, 25 Ohio
St. 360; 18 Am. Rep. 290; Scharff v.
Meyer, 133 Mo. 428. The considera-
tion which will support the transfer
may be a pre-existing debt due by
the transferrer to the transferee, or
a pre-existing obligation by the for-
mer to the latter to transfer it, and
need not be a new consideration.
4 Eng. Rul. Cas. 190; Leask v. Scott,
2 Q. B. D. 376; Lee v. Kimball, 45 Me.
172.
* A transfer of the bill of lading
obtained by fraudulent purchase of
the bill does not defeat the right.
Decan v. Shipper, 35 Pa. St. 239; 78
Am. Dec. 334; Pollard v. Vinton, 105
TU. S. 7. -
6 Modern statutory law has almost
entirely superseded the ancient. Com-
mon law, as modified by the statute
of frauds, and the law of chattel
mortgages must be sought in the
statutes of the states and decisions
construing them. See, for example,
a most learned and instructive case
on the law of mortgages as modified
by an early statute. White v. Cole,
24 Wend. 116.
7 Hervey v. Rhode Island Loc.
Works, 93 U. S. 664. The registra-
tion acts are based upon the broad
grounds of public policy. They are
said to be a police regulation. Pyeatt
v. Powell, 51 Fed. Rep. 551.
§ 618.] IMORTGAGE OF CHATTELS. 879
Parsons speaks of such a transaction as “Sales of chattels by
way of mortgage.”"
The rule of the common law which sanctions a conditional
sale with or without a transfer of possession applies to mort-
gages, which are but another form of conditional sale, the con-
dition being to secure the performance of an obligation by the
vendor.”
A chattel mortgage without possession was at common law
prima facie void, but not absolutely so, and unless shown to
be bona fide would not defeat the rights of creditors and sub-
sequent purchasers,” eacept they had notice of its easistence,"
either by an actual transfer of the possession, or actual knowl-
edge or constructive notice as provided for by statute in most
of the states; but such a contract, not being illegal or abso-.
lutely void, is good against all having notice except in so far as
the rule is changed by statute, as is the case in some of the
states.”
Definition.—A chattel mortgage is in form a transfer of
title with a defeasance clause, i. e., a clause providing that if
the mortgagor performs his covenant the mortgage shall be
void; or a conveyance of title, expressed to be for the purpose
of securing the performance of a covenant made by the owner,
with a condition that the mortgagee's title shall become abso-
lute upon non-performance of the covenant.”
11 Parsons on Cont. (6th ed.), 569.
2 Distinction between a conditional
..sale and a mortgage.— First. The
object of the transaction, in the case
of a conditional sale, is to transfer
title simply, while in the case of a
mortgage the object is to pass title
as security. Second. In the case of a
conditional sale the purchaser is to
perform a condition, either precedent
or subsequent, or the title will not
vest. In the Case of a mortgage the
owner vests the title to secure the
performance of a covenant or obli-
gation. On his part, the failure in
which extinguishes altogether his
legal right in the chattel.
* A subsequent mortgagee is on the
: SółIſle tºns in this respect as a sub-
sequent purchaser. Stewart v. Platt,
101 U. S. 731.
4There is some difference of opin-
ion on this point. All agree that
the presumption was against the
fairness where possession remained
with the mortgagor. Some courts
held that it might be explained,
others the contrary. The question is
now rather a matter of curiosity than
a practical question, but the princi-
ple involved must always have its
weight in questions of sales and
mortgages. Pyeatt v. Powell, 51 Fed.
Rep. 551. See next citation.
5 See Hervey v. Rhode Island Loc.
Works, 93 U. S. 664.
6 Bragelman v. Dana, 69 N. Y. 69;
Pyeatt v. Powell, 51 Fed. Rep. 557.
880 THINGS. [$ 618.
The former is the appropriate form when the possession re-
mains with the mortgagor; the latter when the mortgagee is
given possession." * -
A parol chattel mortgage is valid if accompanied with deliv-
ery, otherwise it is prima facie invalid as against third parties,”
although it is binding inter partes.”
Mortgage and Pledge Distinguished.—The transaction which
most nearly resembles a mortgage, with possession transferred
to the mortgagee, is a pledge.”
A pledge is a species of bailment where the goods are de-
posited as security for a loan, but it bears a close affinity to a
mortgage. - -
The possession is always transferred in case of a pledge; it
may or may not be in case of a mortgage.”
The legal title to the goods does not pass to the pledgee,
nor will the pledgor's title be divested until sold under the
proper formalities. A mere default in payment does not have
that effect."
There can be no sale except on notice, and the rights of the
pledgor, until extinguished, survive his death."
In case of a mortgage the legal title is in theory in the mort-
gagee.
If the condition of the mortgage, in reference to the perform-
ance of the covenant, is not complied with, the mortgagee's
title becomes absolute,” although the equitable doctrine of re-
demption against forfeitures has had the effect of bringing
about a right of redemption, either statutory or through the
intervention of a court of equity.”
Parol Evidence to Show a Mortgage.—An instrument in the
form of an absolute bill of sale may have been intended to
operate merely as a mortgage, and will be given such an effect
as between the parties if the intention is made clearly to ap-
1 Porter v. Parmley, 52 N. Y. 185. 6 Cortelyou v. Lansing, 2 Caines'
2 Ackley v. Finch, 7 Cow. 290; Day Cas, 200. In this case Kent, as jus-
v. Swift, 48 Me. 368. • . tice of the court of errors, gives a
3 Brooks v. Ruff, 37 Ala. 371; Rey- learned exposition of the rights of
nolds v. Fitzpatrick (Mont.), 57 Pac. the pledgor after default.
Rep. 452; McCoy v. Lassiter, 95 N. C. 7 Id.
880. 8 Ackley v. Finch, 7 Cow. 290;
4 Jones on Chat. Mort., secs. 3 and 4; Pyeatt v. Powell, 51 Fed. Rep. 551.
Story, Eq. Jur., sec. 1030. 9 Story, Eq. Jur., Sec. 1031; Jones,
* Story, Eq. Jur., sec. 1030. Chat. Mort., Sec. 681 et seq.
§ 618.] MORTGAGE OF CHATTELS.
881
pear." Parol evidence will be received to show that a sale
absolute on its face was intended as a mortgage upon the
ground of establishing a trust.”
What May be Mortgaged.—While an equitable lien may be
created on property to be brought into existence or to be there-
after acquired by the mortgagor, binding upon him and all
claiming under him, and an action to foreclose may be main-
tained,” the legal title to property not in existence actually or
potentially can be transferred neither by way of sale or mort-
gage. Thus, a mortgage on machinery to be manufactured does
not confer a title which will support conversion.” But as in
the case of sales, things potentially in being, such as future crops
of land in which the mortgagor has an interest, the increase of
animals, etc., may be mortgaged.” y
The identity of the chattels must be so certain that there can
be no real occasion for confusion. It is not allowable as against
third persons to mortgage a portion out of a herd of cattle" or
a stock of goods which is changing, permitting the owner to
introduce new goods and sell out others."
1 Boh v. Irwin (Ky.), 51 S. W. Rep.
444. Thus, if in a bill of sale the
right is reserved to the vendor to re-
take the property upon default in
payments, this will be construed to
be a chattel mortgage. Baldwin v.
Owens (Ky.), 51 S. W. Rep. 438; Mor-
gan's, etc. Co. v. Shinn, 15 Wall. 105;
Hamilton v. Russell, 1 Cranch, 310.
* Newton v. Fay, 10 Allen, 505;
Russell v. Southard, 12 How. 139.
* Holroyd v. Marshall, 10 H. L. Cas.
191; Mitchell v. Winslow, 2 Story,
647; Ludlum v. Rothschild, 41 Minn.
222. Equity treats such a mortgage
as binding on the conscience of the
mortgagor to execute a mortgage as
soon as the property comes into
being or is acquired. Little Rock &
Ft. S. R. Co. v. Page, 35 Ark. 304.
4 Deeley v. Dwight, 132 N. Y. 59; 18
L. R. A. 298 and note. “Invalidity
at law imports nothing more than
that a mortgage of property there-
after to be acquired is ineffectual
as a grant to pass the legal title. A
court of equity in giving effect to
such a provision does not put itself
in conflict with that principle. It
does not hold that a conveyance of
that which does not exist operates
as a present transfer in equity, any
more than it does in law. But it
Construes the instrument as Operat-
ing by way of present contract, to
give a lien which, as between the
parties, takes effect and attaches to
the subject of it as soon as it comes
into the ownership of the party’”
(Kribbs v. Alford, 120 N. Y. 524), and
may be specifically enforced.
5 Northwestern Bank v. Freeman,
171 U. S. 620; Pyeatt v. Powell, 51
Eed. Rep. 551; Borden v. Croak, 131
Ill. 68; 19 Am. St. Rep. 23.
6 But persons who have notice or
knowledge of such a mortgage must
respect the rights of the mortgagee.
Northwestern Bank v. Freeman, 171
U. S. 620.
7 Hangen v. Hachmeister, 114 N. Y.
566; 5 T. R. A. 137; Johnson v. Gri-
882
[$ 618.
THINGS.
The description must be so certain as to enable third parties
to identify the articles and fix the quantity with the aid of
extrinsic evidence.
JDelivery and acceptance of the deed are necessary to consti-
tute a valid mortgage.
A writing signed, sealed and acknowl-
edged, but never delivered, does not become operative as a
1
mortgage.
Delivery of the Chattel.—The change of possession, where
the mortgage is not recorded, must be open, actual, public and
continued,” precisely as in the case of a sale.”
Recording.—Statutes in most, if not all, of the states pro-
vide for the recording of these chattel mortgages; * and in this
manner the rights of all the parties concerned are fixed and
sard, 51 Ark. 410; 3 L. R. A. 795;
Hayes v. Westcott, 91 Ala. 147; 11
L. R. A. 488; Brasher v. Christophe,
10 Colo. 284; New v. Sailors, 114 Ind.
407; Barnett v. Fergus, 51 Ill. 352;
Parker v. Chase, 62 Vt. 206; 22 Am.
St. Rep. 99. *
1 Delivery takes place by words Ör
acts and intention. It is a question
of both law and fact, and from the
facts and circumstances is to be de-
termined whether a legal delivery
and acceptance has been accom-
plished. Shults v. Shults, 159 Ill. 654;
Fletcher v. Martin, 126 Ind. 55. The
mere recording by the mortgagor
does not constitute a delivery. Ox-
nard v. Blake, 45 Me. 602. See also
Com. v. Cutler, 153 Mass. 252; Berlin
Mach. Works v. Security Trust Co.,
60 Minn. 161.
2Siedenbach v. Riley, 111 N. Y. 560;
Herr v. Denver, etc. Co., 13 Colo. 406;
6 L. R. A. 641. f
3 Smith v. Moore, 11 N. H. 55; Par-
son on Cont. 453–54. Parsons says:
“The necessity of delivery to the
mortgagee, or of a record, is wholly
the effect of statutory provisions, and!
at Common law a mortgage of per-
sonal property might be valid in the
absence of fraud, even against Sub-
sequent bond fide purchasers and at-
taching creditors, although the mort-
gagor remained in possession, and
although no record of the mortgage
existed. Holbrook v. Baker, 5 Greenl.
309; Bissell v. Hopkins, 3 Cow. 166;
Bucklin v. Thompson, 1 J. J. Marsh.
223; Letcher v. Norton, 4 Scam. 575;
Ash v. Savage, 5 N. H. 545; Homes v.
Crane, 2 Pick. 610. Such continued
possession by the mortgagor might
be sufficient evidence of fraud, but
alone it would not be in most states
conclusive. Ibid. In Vermont it
would be. Russell v. Fillmore, 15 Vt.
130. Although the mortgagor remain
in possession and without any rec-
Ord of the mortgage, it seems that a
Subsequent purchaser or attaching
creditor, having actual motice of the
existence of the mortgage, acquires
no rights against the mortgagee,
the latter being guilty of no fraud.
Sanger v. Eastwood, 19 Wend. 514;
iStowe v. Meserve, 13 N. H. 46; Greg-
ory v. Thomas, 20 Wend. 17. The
contrary has been held in Massachu-
setts. Travis v. Bishop, 13 Met. 304.
And see Denny v. Lincoln, id. 200.”
Northwestern Bank v. Freeman, 171
TJ. S. 620.
* A very interesting case, involving
property located in the Indian Terri-
tory, where there were no statutory
provisions in force, is Pyeatt v. Pow-
ell, 51 Fed. Rep. 551.
§ 618.] MORTGAGE OF CHATTELS. 883
protected." A partnership mortgage, for example, may re-
Quire recording in several places in order fully to give the no-
tice intended.”
A chattel mortgage recorded in the county where executed
will protect the mortgagee though the property be removed
into another county or over into another state, on the ground
of comity. The recording need not be repeated in the state to
which the property is removed. It will operate as constructive
notice, and the rule of caveat emptor will apply.”
Mortgagee as Owner.— Mortgaging of chattels being re-
garded as a valid transaction, it follows that the mortgagee's
title can be defeated only by some act or omission of his own,
or divested only by process against him.”
An agister cannot, by a contract with the mortgagor, ac-
quire a lien for the keeping of live animals,” nor a warehouse-
man for the storing of goods." Creditors of the mortgagor
cannot seize and sell the property."
In short, the mortgagee is the legal owner, and may protect
and preserve the property by all proper modes open to an owner.
Mortgagor's equity of redemption is not, except by statute, a
legal right; nor is it yet one which must be allowed in a court
of equity as a matter of course.”
1 Unless a statutory inhibition ex-
ists, the recording adds nothing as
between the parties. Beeman v.
Lawton, 37 Me. 543; Fuller v. Page,
26 Ill. 356. Generally, under the
statutes, registration is equivalent to
a delivery of the property. Under
these acts omission to record does
not render the mortgage void as to
all persons, but only as to judgment
creditors and subsequent purchasers
in good faith. Steele v. Benham, 84
N. Y. 634; Kohl v. Lynn, 34 Mich.
360. And actual notice dispenses
with the necessity of filing. Temp-
sey v. Pforzheimer, 86 Mich. 652; 13
T. R. A. 388 and note.
2 Stewart v. Platt, 101 U. S. 731.
& Ord Nat. Bank v. Massey, 48 Kan.
762; 17 L. R. A. 127 and note,
*But the mortgagor has such an
interest as prevents the seizure and
sale of the property on process.
against the mortgagee until Condi-
tion broken. Jones on Chat. Mort.,
Sec. 566. See Herman on Ex., Sec.
121. Without a foreclosure after
condition broken, the chattels may
be seized on execution against the
mortgagee. Ferguson v. Lee, 9 Wend.
258. Under the statutes generally
the legal title remains in the mort-
gagor till foreclosure. Drummond
Carriage Co. v. Mills (Neb.), 40 L. R.
A. 762.
5 Bissell v. Pierce, 28 N. Y. 252;
Jones on Chat. Mort., Sec. 472. %
6 Storms v. Smith, 137 Mass. 201;
Jones on Chat. Mort., Sec. 472. -
7 Note 4, supra; Pyeatt v. Powell,
51 Fed. Rep. 551. t
8 By the old common law a mort-
gage of personal property gave an
absolute title to the mortgagee On
884 THINGS. < [$ 618.
It is based upon the idea that, although the form of a mort-
gage is that of a sale, in substance it is a mere security, and
the default works a forfeiture." Ordinarily, within a reason-
able time after condition broken and a sale of the property,
courts of equity are liberal in allowing a redemption to pre-
vent a forfeiture.” -
SEC. 619. Bailments.-This generic term” embraces several
contracts, apparently so diverse in their objects that the un-
initiated would not suspect that there was any common feat-
ure which classes them as members of one family; e.g., there
is little apparent similarity between the loan of a horse, the
pledging of a jewel to a pawnbroker, the hiring of the clean-
ing of a watch by the jeweler, the tailoring of cloth into a
suit, the deposit of money or any article for safe-keeping,' and
the carrying of goods from one place to another; yet these
breach of condition. No process of
foreclosure was necessary, and there
was no right of redemption. Jones
On Chat. Mort., Sec. 681; Taber v.
Hamlin, 97 Mass. 489; Burtis v. Brad-
ford, 122 Mass. 129; Frankenthal v.
Meyer, 55 Ill. App. 405.
1 Adams' Eq., pp. 110, 111.
* Jones on Chat. Mort., Sec. 881 et
seq.; Ackley v. Finch, 7 Cow. 290;
Blanchard v. Kenton, 4 Bibb, 451;
Jackson v. Cunningham, 28 MO. App.
354; Freeman v. Freeman, 17 N. J.
Eq. 44.
8 Most text-writers and legal lexi-
cographers seem content to give, the
derivation of bailment as from the
French bailler, to deliver, but it is
obvious from the fact that the law
of bailments is taken bodily from
the civil law that this is not the root
word. In the old Law Latin and
Law French Dictionary, to which
occasional reference has been made,
of whose authorship nothing more is
Rnown than it is by “F. O.,” the
most reasonable explanation of the
derivation is given. It is there said
it is derived from the French word
bailler, and that also cometh from
the Greek. They both signify to de-
liver into the hand. The same word
includes the bailing (delivery) of one
out of prison into the hands of his
friends. “Bail is derived from the
Greek verb /3a. AA60, id est mitto, to
let pass, car celluy gue beille. Mittit
a se, bailes hors, delivered out, tra-
ditur in ballivo, delivered upon bail
or keeping.”
4.The ordinary deposit of money in
a bank is not a bailment, although
it is a delivery of the money for safe-
keeping to be returned on demand,
because it is understood that the
money is to be mingled with the
banker's general fund and becomes
his money; but a special deposit of
a package or box of money with a
banker or any one else to be kept is
a bailment. Foster v. Essex Bank,
17 Mass. 479; People v. Sheppard, 55
N. Y. S. 1130. The retention of the
general title in the bailor and the
obtention of a special title by the
bailee are essential features of the
contract; and if the contract per-
mits a complete change of title by
permitting a return of other articles
or the value of the pledge, it is no
bailment. Austin v. Seligman, 18
Fed. Rep. 519.
§ 619.] BAILMENTS. 885
with several other contracts, apparently as dissimilar, are all
of the genus bailments.
* Definitions and Distinguishing Features.—The one common
feature of all bailments is that the goods are held by the bailee
in trust; i. e., he gets a special property in them for a special
object. -
A bailment is almost universally defined as “a delivery of
£ersonal property in trust for some special object or purpose.”
This trust relationship, with its peculiar feature that the
bailee obtains a special property and the bailor retains the gen-
eral ownership in the thing, distinguishes a bailment in any
form from an agency, or the hiring of labor upon chattels
where possession does not pass.”
One species we have already distinguished from mortgage,
hamely, a pledge.”
Another species, a sub-class—locatio oper's faciend? —is
sometimes exceedingly difficult to distinguish from a sale.*
A Finding.—The language of these definitions is not sug-
gestive of the mode in which at least one of the species may
arise. The definitions say a bailment is a delivery of goods in
trust, whereas a bailment may arise by a finding, in which a
delivery in fact is absent and the intrusting arises only by
implication. For this reason the word receiving, instead of
delivery, is more apt.” -
Jøestoration or Redelivery.—Again, some definitions include
the feature that the goods shall be restored to the bailor. This
may tend rather to confuse the novice; e.g., in a contract for
carrying goods from the vendor to the vendee, the title passes
from the vendor to the vendee on delivery to the carrier, and
then there is no redelivery, but a delivery to the vendee.
1 See Law Dictionaries, title “Bail-
ment,” and text-books.
24?vie, p. 884, note 4. An agent oc-
cupies a position of trust and confi-
dence, a fiduciary relation, but it is
not a trust in the sense here intended.
In a pure trust there is in the subject-
rmatter of the trust some form of prop-
erty in which the trustee holds some
. Sort of title. The bailee obtains such
a title and he may sue for an injury to
it. Great W. R. Co. v. McComas, 33
Ill. 186.
3.Ante, p. 880.
4.Ante, p. 884, note 4.
5 Jones very properly says the sub-
ject embraces every case “by what-
ever means the goods are legally in
the hands of the possessor, whether
by delivery from the owner, which
is a proper bailment, or from any
other person, by finding, or in conse-
quence of Some distinct contract.”
886 TEIINGS. [$ 619.
JDefinition.— The essential features of a bailment are (1) the
receiving of (2) personal property (3) under a contract express
or implied, in which it is understood that the bailee shall not
become the general owner, but by which he obtains a special
property as trustee for some special object.
JForms and Classification.— On a subject so vast in its extent
and so varied in its phases, the severest analysis and clearest
Outline must be resorted to, in Order to convey any adequate
comprehension of the subject. -
The outline on page 887 may serve as an aid in distinguishing
the various classes from each other, and in a clearer under-
standing of the foreign idiom in which the subject is still ex-
pressed. 4
Referring to the synoptical outline, it will be noticed that
there are five distinct species of bailments; three of these are
without compensation and two of them are with compensation.
Among the first three it will be noticed that in some in-
stances the bailment may be for the benefit of one party, i. e.,
the bailor, while in other instances it is for the benefit of the
bailee, while in the case of a pledge it may be for the benefit
Of both.” -
The student will encounter the most difficulty in understand-
ing the species locatio and its sub-classes because of the nomen-
clature, which is still the Latin words in which these subjects
were presented in the civil law, and is more intricate than in
the other classes.
Some little pains has, therefore, been taken to give these
Latin sentences or words their English meaning, which, being
presented in the outline, need not be repeated.”
It may be emphasized, however, that the student should not
allow the use of the word mercium, which is generally omitted
by writers in describing the other forms of locatio, and is al-
ways given in connection with the word vehendarum, as express-
1 Dale v. Lee, 51.N. J. L. 678; 14 Am.
St. Rep. 688.
2 For whose benefit the bailment is
created has been made the basis of
a classification intended to show the
degree of care required of the bailee
in the keeping and his responsibility
for neglect; and while this classifica-
tion is not without its use, it loses
sight of the distinguishing features
of each class and sub-class; in other
words, it subordinates the funda-
mental difference to a minor inci-
dent. Story, Bail, § 3.
8 The late Dr. Hammond says: “It
is worth any amount of pains to
make fundamental principles plain.”
$ 619.]
887
IBAILMENTS.
:
º
SYNOPTICAL OUTLINE OF BAIIMIENTS.
I. Depositwm. A deposit to keep, p. 888.
~!
*
II. Commodatum. Lending for use, p. 889.
º
III. Mandatum. To do Something, or carry, p. 889.
W. Locatio, p. 892.
De locatione et
conductione.— Of
letting and hiring.
Sand. Jus. 448;
Gaius III, 142. The
reward, merces! or
rent is just as es-
sential to the idea
of locatio aS is the
price (money) to
the idea of sale.
Mackeldey, R. L.
321. See Cooper's
Just. III, XXVII,
Sec. 31, tit. “De
mercede.” Id.,
p. 629.
ſ
1. F a cº e ºn d ?
IV. Pignus, pledge or pawn. A deposit, as security for debt, p. 890.
ſ (1) Rei — the letting and hiring of a thing for rent,
p. 892.
(2) O p e r is —
BI i r e o f
work. Story,
Bail., 421,
422, p. 893.
(doing, mak- -
ing or pay-
ing), p. 893.
ſ (1) Labor and Serv-
ice, p. 893.
a. Artisan, p. 893.
(2) Custodoe.
a. Private.
(a) Agisters,
p. 894.
(b) Boarding-
houses and
1 O d g in g-
h O use S,
p. 894.
b. Public.
(a) Wharfinger,
p. 894. $
(b) Warehouse-
man, p. 895.
(c) Innkeepers,
p. 896. W.
(d) Forwarding.
merehants,
p. 898.
(e) F a c t or ,
p. 898.
(f) Sleeping-
2. (Mercium) *
‘w eh e m doº-
Trºw, m. Car-
riage for
hire, p. 899. U
CarS, p. 898.
(1) Private, p. 899.
(2) Public. Com-
Imon Carriers Of
goods and chat-
tels, p. 899.
* From merces, rent or reward. Mackeldey, R. L. 320; Sand, Jus. 448; Gaius III, Sec. 142.
888 THINGS. [$ 619.
ing the peculiar species called carriers, to mislead him into
believing that mercium is peculiar to that form of bailment.
The word locatio, meaning a hiring, impliedly includes a
lender and a hirer, and also the price — mercium.
To constitute a renting there must be a lessor and a lessee;
so the civilians say de locatione et conductione: the renting and
hiring. .
The first sub-class of locatio is rei, or rerum, the hiring of the
use of a thing. The second sub-class is distinguished by the
word operås, for work, labor or personal service, which is again
subdivided into faciend; and mercium vehendarum. -
Jaciend?" indicates that the hiring is of personal services,
while the second sub-class, oper's mercium vehendarum, carry-
ing, indicates that it is a placing of a thing in custody, and that
the custodian or bailee shall perform a distinct service in re-
gard to it, i. e., operts, by carrying it from place to place, i.e.,
vehendarum. .
What May be Bailed.— The subject of a bailment must be
personal property;” but it need not, as is sometimes said, be a
chattel. Many forms of choses in action, such as stocks, bonds,
negotiable paper, mortgages, etc., and in general all choses
which may pass by delivery, may be the subject of bailment;”
and of course, delivery being essential to all bailments, the
thing must be in existence. -
JDepositum is a bailment of goods to be kept by the bailee
without reward until called for by the bailor, or delivered on
bis order.” -
One is not obliged to accept or retain such a bailment, and
may at any time tender the property to the owner and termi-
nate the relation.” - * .
1 The doing, making or paying was
one of the apt words in reserving
rent. Kinney’s Law Dict. In this
hiring of services the bailor pays the
rent or price. In the cases of hiring
Of things, the bailee pays the hire.
This distinguishes locatio red from
locatio operis faciendi.
* Carriers of passengers.--It fol-
lows that carriers of passengers do not
fall within the subject. Telegraph
$nessages are not sufficiently of the
nature of personal property to be the
subject of bailments. Primrose v.
W. U. Tel. Co., 154 U. S. 1. Cf. Parks
v. Alta Tel. Co., 13 Cal. 422; 73 Am.
Dec. 589. -
3 Union Trust Co. v. Rigdon, 93 Ill.
465; Joliet Iron Co. v. Scioto F. B.
Co., 82 Ill. 549. * *
4 Rozelle v. Rhodes, 116 Pa. St. 129;
2 Am. St. Rep. 591. -
5 Roulston v. McClelland, 2 E. D.
Smith, 60.
$ 619.] wantests. 889
The finder of goods becomes a depositary, or a thief, accord-
ing to his intent when he takes up the property." He acquires
a special property in the goods as against all but the true
Owner.” -
A depositary has a title which will prevail against a mere
wrong-doer.”
Articles are, in contemplation of law, in possession of the
possessor of the soil, and he has a title Superior to that of a
finder.”
A finder has no lien on articles found, for their keeping, al-
though he may have a claim for sums reasonably expended.
If a reward is offered he has a lien.” -
Astrays.-The taker up of estrays has no lien except as he
pursue the common-law remedy for distress of animals damage
Jeasant, or by virtue of some valid statute."
JMandatum is a bailment of chattels for the purpose of being
carried from place to place, or to have some work performed
upon them without compensation.' If the parties agree upon a
price (mercium), the same service becomes locatio.
The essential difference between a depositum, and a mandate
is that in the former the bailee is to do a passive service, as
to keep the chattels, while in the latter he is to do something
with or on them beside keeping. - -
Commodatum is the civil and common-law term for the lend-
ing of a chattel for use and without compensation.
Should the loan be for a specified time, the bailor may not
revoke his license and recall the property,’ and under an agree-
ment it is the duty of the borrower to return the property at
the time and place appointed. A non-compliance amounts to
a conversion.”
Where the loan is for an indefinite time, trover will lie only
after demand and refusal.” -
1 If he intends to appropriate it to 5 Wentworth v. Day, 3 Met. 352;
his own use he commits a larceny. Hendler v. Perkins, 4 Pa. Sup. Ct.
State v. Hayes, 98 Iowa, 619. Rep. 344.
2 Dougherty v. Posegate, 3 Iowa, 6 Rockwell v. Nearing, 35 N. Y. 302.
88. As to what constitutes a finding, 7 Bronnenburg v. Charman, 80 Ind.
see Goddard v. Winchell, 86 Iowa, 71. 475.
8 Armory v. Delamirie, 1 Strange, 8 Root v. Chandler, 10 Wend. 111.
504; 1 Sm. Lead. Cas, 631; Orson v. 9 Clapp v. Nelson, 12 Tex. 370.
Storms, 6 Cow. 687; 48 Am. Dec. 543. 10 Montgomery v. Evans, 8 Ga. 178;
4 South S. W. Co. v. Sharmon, 2 Phelps v. Bostwick, 22 Barb. 314.
Q. B. 44; 74 L. T. R. 761. 4. *
890 THINGs. [$ 619.
Pignus, pledge or pawn is a deposit of personal property as
security for some debt or undertaking."
It is for the mutual benefit of the parties. The pledgor ob
tains credit and the pledgee security for the debt. -
The possession of the subject of the pledge by the pledgee
is an essential feature to the creation and continuation of the
lien.”
The chief distinction between an hypothecation and pledge
is that in the former delivery is not necessary and in the latter
it is.” -
A chattel not in existence or to be acquired cannot be pledged,
but may be hypothecated or mortgaged.* .
The distinction between a pledge and a conditional sale and
a mortgage has been sufficiently explained." *
TWhat May be Pledged.—Personal property of any description,
capable of delivery or assignment, may be pledged,” and also
interests in personal property, but only to the extent of that
interest." There are some exceptions, on the ground of public
policy, such as the pay of soldiers and sailors in the employ of
the government, pension certificates, school land certificates,
etc.8
1 A pledge secured by fraud is
void. Mead v. Bunn, 32 N. Y. 275.
2 Rowell v. Claggett, 41 Atl. Rep.
173; Cooper v. Simpson, 41 Minn, 46;
16 Am. St. Rep. 667.
3 Stearns v. Marsh, 4 Den. 227. The
nature of the subject of pledge de-
termines the form and character of
delivery. Goods in transit may be
constructively delivered. Rochester
v. Jones, 4 N. Y. 497; Allen v. Will-
iams, 12 Pick. 297. Cumbersome ar-
ticles may be delivered symbolically.
Berley v. Spring, 12 Mass. 300. Stocks,
bonds and negotiable paper by writ-
ten transfer, accompanied by Such a
delivery of which they are suscepti-
ble. Wilson v. Little, 2 N. Y. 443;
Wheeler v. Newbould, 16 N. Y. 392.
But in some form it is essential. Re
Lanaux’s Succession, 46 La. Ann.
1036; First Nat. Bank v. Harkness, 42
W. Va. 156. Boma fides will not avail
where there is no delivery. Geilfuss
v. Corrigan, 95 Wis. 651. See also
Willets v. Hatch, 132 N. Y. 41. Pos-
session of pledgor is prima facie evi-
dence of fraud, but may be rebutted,
Macomber v. Parker, 14 Pick. 497;
but such possession can only be for
some essential temporary purpose.
A redelivery destroys the lien. White
v. Platt, 5 Den. 269; Kimball v. Hil-
dreth, 8 Allen, 167.
4 Macomber v. Parker, 14 Pick. 497.
5 Amte, pp. 879, 880. See Conrad v.
Atlantic Ins. Co., 1 Pet. 449.
6 Money, negotiable and quasi-nego-
tiable paper and choses in action are
proper subjects of bailment. Schou-
ler on Bailm., sec. 172; Stewart v.
Tansing, 104 U. S. 505; Morris Can
Co. v. Foster, 9 N. J. Eq. 667.
7 Moffatt v. Van Doren, 4 Bosw. (N.
Y.) 143; Mowry v. Wood, 12 Wis. 413.
8 Wilson v. Little, 2 N. Y. 443,
§ 619.] IBAILMENTS. 891.
Manner of Keeping and Use.—The propriety of using the
pledge depends upon the nature of the property." The consent
of the pledgor is required, but if the property is of such a char-
acter that it may be better preserved by use, the consent of the
pledgor will be presumed.”
Where expenses are necessarily incurred in its care, they
may be charged to the pledgor.” The increments of the pledge
belong to the pledgor, subject to the lien of the pledgee until
the debt has been canceled.*
The existence of a bond ſide Original obligation is essential to
the continuation of the lien, because a pledge is always collat-
eral and cannot exist separated from the original undertaking.”
They may be assigned together, but separated the bailment is
at an end." The extinguishment of the debt puts an end to the
lien of the bailee. - .
The Remedies of the Pledgee.—Default in the payment of
the debt for which the pledge is made does not forfeit the title.
The pledgee has the choice of two modes of proceeding. 1. He
may file a bill in chancery for a judicial sale under decree.
2. He may sell the pledged property without process after no-
tice to the pledgor to redeem," unless it is negotiable paper,” in
which case it is his duty to collect,” unless specifically author-
He cannot purchase at his own sale."
ized to sell."
1 Alvord v. Davenport, 43 Vt. 30.
2 Lawrence v. Maxwell, 53 N.Y. 19.
A sewing machine should not be
used. McArthur v. Howett, 72 Ill.
358: Coggs v. Bernard, supra.
8The pledgee may incur necessary
and proper expenses. Starrett v.
Barber, 20 Me. 457; Hills v. Smith, 28
N. H. 369.
4 Norton v. Baxter, 41 Minn. 146;
16 Am. St. Rep. 679; Loughborough
v. McNevin, 74 Cal. 250; 5 Am. St.
Rep. 435.
5 Merritt v. Bartholick, 36 N. Y. 44.
° 3 Otto, 321; Chapman v. Brooks,
31 N. Y. 75, 78; Norton v. Baxter,
Supra; Cooper v. Simpson, 41 Minn.
46; 16 Am. St. Rep. 667.
"Robinson v. Hurley, 11 Iowa, 410.
* Distinction between a pledge of
Ordinary chattels and a pledge of
Commercial paper.— “The pledge of
^.
Commercial paper as collateral secu-
rity for the payment of a debt does
not, in the absence of a special power
for that purpose, authorize the party
to whom such paper is so pledged to
Sell the Securities so pledged upon
default of payment, either at public
Or private sale. He is bound to hold
and Collect the same as it becomes
due, and apply the net proceeds to
the payment of the debt so secured.”
Joliet Iron Co. v. Scioto Fire Brick
Co., 82 Ill. 549, quoted and cited in
TJnion Trust Co. v. Rigdon, 93 Ill. 458.
9 Joliet Iron Co. v. Scioto Fire B.
Co., Supra.
10 Glidden v. Mech. Nat. Bank, 53
Ohio St. 588; 43 L. R. A. 787; Rush
v. Bank, 71 Fed. Rep. 102.
11 Id. Pledgee of coupon bonds may
collect coupons. Androscoggin R. Co.
v. Auburn Bank, 48 Me, 335. He may
892 THINGS. [$ 619.
Remedies of the Pledgor.— If his goods are lost or damaged
by reason of the negligence of the bailee, he may sue for their
value or the damage, or a bill in equity will lie to redeem them."
The wrongful sale does not ipso facto determine the contract
relation between pledgor and pledgee, and until that is legally
ended the statute of limitations does not begin to run, and the
pledgee may tender the debt and demand the return of the
property; and if refused, bring an action for its value.”
Jocatio Re? — Hºring of a Thing.—The payment of the hire
or rent distinguishes it from commodatum,” and if the time is
specified the bailee's qualified interest is certain and cannot be
divested even by the bailor, who, although owner, has, as be-
tween them, but a reversionary interest in the thing hired.
Use of the Thing Hired.—The use to which the chattel is to
be put is subject to the contract of the parties, and this con-
tract may not be deviated from. Such a deviation amounts to
a conversion, and the bailee is liable in tort,” or the bailor may
collect stock dividends. Gaty v.
Boleday, 29 Cal. 142; Hill v. Finni-
gan, 77 Cal. 267; 11 Am. St. Rep. 297.
1 The measure of damages in a suit
against the bailee for a conversion
of the subject of bailment is the
value of the property, but its value
may fluctuate; and it has been held
that the owner is entitled to its value
at the highest figure it would bring
at any time after demand and before
trial. See Cortelyou v. Lansing, 2
Caines’ Cas. 200; Union Trust Co. v.
Rigdon, 93 Ill. 458.
2 Talty v. Freedman Trust Co., 93
U. S. 321; Day v. Holmes, 103 Mass.
306; Lewis v. Mott, 36 N. Y. 395.
There is some apparent conflict of
authority upon the question of the
necessity for a tender by the pledgee,
it being held in some cases that a
tender must be made in all cases be-
fore a right of action can accrue;
others hold that where the pledgee
has wrongfully disposed of the sub-
ject of pledge, no tender is neces-
sary. But the conflict is more ap-
parent than real. An examination
of the cases will disclose that the es-
Sential difference between the cir-
Cumstances of the case distinguishes
them. A discussion of the conflict
is given in Rush v. Bank, 71 Fed.
Rep. 102. Union Trust Co. v. Rigdon,
93 Ill. 458, holds no tender necessary
where it is beyond the power of the
pledgee to restore. Loughborough
v. McNevin, supra. -
*Where the contract stipulates
Other than a money consideration,
Such contract is termed innominate.
4 City of Col. v. Howard, 6 Ga.
213; Cullen v. Lord, 39 Iowa, 302; 40.
Conn. 111; Thompson v. Harlow, 31
Ga. 348; Conrad v. Hildebrand, 69
Wis. 396; Clark v. United States, 95
U. S. 539; Zell v. Dunkle, 156 Pa. St.
353; Sims v. Chance, 7 Tex. 561;
Stacy v. Knickerbocker Ice Co., 84
Wis. 614; Collins v. Bennett, 46 N. Y.
490; Rotch v. Hawes, 12 Pick. 136.
The pledgee is not responsible where
loss is occasioned by theft, where he
uses due care. Foster v. Essex Bank,
17 Mass. 479; 9 Am. Dec. 168.
5 Homer v. Twing, 3 Pick. 492;
Campbell v. Stakes, 2 Wend. 138. If
the thing hired is a horse, the bailee
§ 619.] BAILMENTS.
893,
exercise his right of election and sue ea contractu for the value
of the goods." r
Repair of Höred Chaffels.-The rule of the Roman law, that
a bailee of a hired chattel is bound to keep the property in re-
pair, is not followed by the common law.” §
The general rule is that, in the absence of express agreement
or custom, he is not liable to make repairs.”
Remedy Against Third Persons.—In case of injury to the bail-
ment the general owner is entitled to bring the action; but if
it is to gain possession, an action may only be brought by the
party entitled to immediate possession.”
Locatio oper's faciend' –the hiring of labor to be performed*
upon some chattel, generally by an artisan or mechanic, or of
mere care and attention to be bestowed in keeping it.
Bailments of this class fall under two heads: .
JFaciend, properly so called, as where the service is in mak-
ing repairs or manufacture of articles from materials furnished.”
Custoday, where the service consists in safe keeping.
Jäen.— The bailee has a lien for the agreed or reasonable
value of the services performed and material furnished,' and he
may enforce that lien against any part of the goods for the
whole bill,” and may vindicate his right to hold them against
any one dispossessing him.”
Ordinary skill and care are impliedly guaranteed in refer-
ence to the labor upon and keeping of the subject of bailment.”
must feed and water it; if a wagon,
he must not overload it. Harrington
v. Snyder, 3 Barb. 380. -
1 See Andrews' Steph. Pl., § 30 e
seq.; 6 M. & W. 499. Should the
bailor send his own servant the rule
would be otherwise. Blake v. Ferris,
5 N. Y. 49. -
2 Central Trust Co. v. Wabash, St.
L. & P. Ry. Co., 50 Fed. Rep. 857.
3 Id.; Higman v. Camody, 112 Ala.
267; Woodward v. Cutter, 33 Vt. 49.
4 13 Smedes & M. 589. Where the
agreement was not to remove the
goods, and they were removed by
an officer making the attachment
against bailee, such removal would
not entitle bailor to immediate pos-
session, nor to bring an action of
replevin against the officer in his own
name. Wade v. Mason, 78 Mass. 335;
74 Am. Dec. 597.
5 Stewart v. Stone, 127 N. Y. 500.
6The bailee may furnish materials
(Story on Bailm. 436) to an amount,
in value exceeding those delivered.
Gregory v. Stryker, 2 Den. 628.
7 Grinnell v. Cook, 3 Hill, 486.
8.Morgan v. Congdon, 4 N. Y. 552.
9|Baton v. Lynde, 15 Mass. 242.
10 Grant v. Button, 14 Johns, 377.
Should the bailor be aware of the
lack of skill in the bailee, he cannot
be heard to complain. Felt v. School
District, 24 Vt. 297.
394 THINGS. [$ 619.
The artisan may employ servants unless his personal Service
is stipulated for." *
A deviation from the service contracted for may defeat or
modify the bailee's right of recovery on the contract,” and ren-
der it dependent upon the principles of a quantum meruit.
Classes of Custoday.—Bailments to store and keep simply
may be separated into those of a private and those of a public
anature, and upon this classification mainly depends the ques-
tion of care and diligence exacted of each.
An agister is one to whom horses, cattle or sheep are deliv-
ered for pasturage.
The agister obtains a special property as against strangers,
but by the common law has no lien,” although by statutes in
most of the states a lien is secured.*
JHe is bound to the exercise of ordinary care.”
Dodging and boarding-house keepers are those who carry on
a private business of furnishing food and lodging on a special
contract" to those whom they may choose to accept," and be-
come bailees by taking charge of the goods of the boarder.
A lien is generally given by statute for unpaid charges, and,
when given, extends to permanent boarders as well as to tran-
sients.
A wharfinger is one who owns or keeps a wharf for the pur-
pose of receiving and shipping merchandise to or from it for
hire.”
Eſe has a lien on the goods in his possession for his reason-
able charges,” and also on the vessel for wharfage."
1 Hall v. Storrs, 7 Wis. 253; Day v.
Holmes, 103 Mass. 306.
2 Grant v. Button, supra.
3 Bissell v. Pearce, 28 N. Y. 252;
Allen v. Ham, 63 Me, 532. The same
is true as to livery-stable keepers.
Id. But it is held that a trainer of
race horses has a lien at common law .
for his labor.
N. H. 64.
4 Id. The Courts of the different
states are not in harmony as to
whether this lien is superior to a
prior Chattel mortgage. That it is,
is held in Case v. Allen, 21 Kan. 217;
Bissell v. Pearce, supra. Contra, Sar-
Towle v. Raymond, 58
gent v. Usher, 55 N. H. 287. See ante,
p. 383.
5 Post, p. 907.
6 Willard v. Reinhardt, 2 E. D.
Smith, 148. -
7 Com. v. Cuncannon, 3 Brewst.
(Pa.) 347; Phillips v. Evans, 64 Mo. 17.
8 Bouvier's Law Dict. 660; The Geo.
E. Berry, 25 Fed. Rep. 780.
9 Johnson v. Schooner McDonough,
Gilpin, 101; The Dora Matthews, 31
Fed. Rep. 619; The Mary K. Camp-
bell, 31 Fed. Rep. 840.
10.The Dora Matthews, 31 Fed. Rep.
619.
§ 619.] IBAILMENTS. 895:
A warehouseman is one who keeps a public store-house and
receives goods for storage for compensation."
It is customary for a warehouseman to give a warehouse re-
ceipt * for the goods, and by the custom of merchants such a
receipt, like a bill of lading, is regarded as negotiable or assign-
able so as to carry the title of the goods without delivery.”
He cannot, however, give a valid receipt for his own prop-
erty in his own possession to secure a debt.”
It frequently happens that the business of warehouseman
and common carrier are combined under one management and
ownership, and, because different degrees of care are required
of each, it frequently becomes an important question to deter-
mine when the duties of the one or the other begin and end.”
A warehouseman is responsible for ordinary care." He is
not an insurer, and is not liable for loss by theft," fire * or in-
evitable casualty,” unless his negligence contributed to the loss.
He is bound to deliver the goods to the bailor or his assignee."
Should he attorn to the purchaser of goods in his custody, he
will be estopped from afterwards setting up any defect in the
vendor's title."
Lºen.—He has a specific lien on the goods stored for the
1 Munn v. IIIinois, 94 U. S. 113;
Tradesman's Nat. Bank v. Kent Mfg.
Co., 186 Pa. St. 556; 65 Am. St. Rep.
,876.
A bonded warehouse is one desig-
nated by the treasurer of the United
States for the storage of merchandise
imported into the United States, or
of goods upon which excise duties
are imposed, until such time as the
duties, excise and customs thereon
shall be paid. They are generally
owned by private individuals, whose
liability for loss is the same as re-
quired of other warehousemen. The
TJnited States is not responsible in
'Case of any loss. Schwerin v. McKie,
51 N. Y. 180. When owned by the
141 Mo. 674; 64 Mo. 545.
government they are called custom-
houses,
*Dean v. Driggs, 187 N. Y. 274; 33
Am. St. Rep. 721.
*Zellner v. Mobley, 84 Ga. 746; 20
Am. St. Rep. 391.
4 Franklin Nat. Bank v. Whitehead,
149 Ind. 560; 63 Am. St. Rep. 302;
Thomas v. Boston & Providence R. R.
Co., 10 Met. 472.
b Thomas v. Boston & Providence
R. R. Co., 10 Met. 472; Mer. Disp. Co.
v. Smith, 76 Ill. 520.
6 Backus v. Start, 13 Fed. Rep. 69;
Pike v. Chi. etc. R. Co., 40 Wis, 583;
Aldrich v. Boston,etc. R. Co.,100 Mass.
31; Maybin v. South Carolina Ry. Co.,
8 Rich. L. 240; 64 Am. Dec. 753.
7 Lamb v. Western R. Co., 7 Allen,
98.
8 Francis v. Dubuque, etc. R. Co., 25
Iowa, 60.
9 Knapp v. Curtis, 9 Wend. 60;
American Brewing Ass’n v. Talbot,
See CAR-
RIERS. -
10 Willard v. Bridge, 4 Barb. 361.
11 Allenborough v. St. Catherine's
Dock Co., 3 C. P. D. 450.
57
896. THINGS. [$ 619.
price of storage, and if a delivery of part of the goods is made
the balance may be held for the whole bill."
Postmasters occupy a relation somewhat similar to that of a
bailee, but which differs in the particular that it does not arise
by private contract, the officer executing a public official
duty. His liability rests on the ground of negligent perform-
ance of that duty, and not on the basis of a contract of bail-
ment.
Officers are not responsible for the defaults or negligence of
assistants, unless they are deputies, if they exercise that degree
of care which a prudent man exercises in the superintendence
of his own business.”
Such assistants are in a measure public officers and respon-
sible for their own misfeasance.”
Hotel-keeper or Innkeeper.”—An innkeeper is one who habit-
ually makes a business of furnishing accommodations and en-
tertainment for all who choose to visit his place. He becomes
a bailee by taking charge of their goods for hire.”
By reason of the public nature of the business, they are bound
to receive, at any time of day or night, all who conduct them-
selves properly * and are ready to pay for entertainment, and
they are obliged to accept and care for a reasonable amount of
luggage, clothing, jewelry and money" of all comers. |
An innkeeper differs from a boarding or lodging-house
keeper in that he must receive any who may come, and enter-
tain them from day to day upon an implied contract, while the
latter receives only those he may choose, under an express con-
tract, generally for a specified time.”
Guests and Boarders.-Those who come to an inn or hotel
for transient entertainment are termed guests,” while those who
1 Schmidt v. Blood, 9 Wend. 268;
Low v. Martin, 18 Ill. 286.
2 Dunlap v. Monroe, 7 Cranch, 242.
3 Story on Bailm. 462.
4 We deal here only with the re-
sponsibility of innkeepers as bailees.
5 Fay v. Pac. Imp. Co., 93 Cal. 253;
27 Am. St. Rep. 198.
A restaurant keeper is not respon-
sible as an innkeeper. Lewis v. Hitch-
cock, 10 Fed. Rep. 4.
6 State v. Steele, 106 N. C. 766; 19
Am. St. Rep. 573; Markham v. Brown,
8 N. H. 523.
7 Smith v. Wilson, 36 Minn. 334; 1
Am. St. Rep. 669.
8 Cooley's Elem. of Torts, 265; Wil-
lard v. Reinhardt, 2 E. D. Smith, 148;
Fay v. Pac. Imp. Co., supra.
9 See Orchard v. Bush (1898), 2 Q. B.
D. 284. The common law confined
the rights of a guest to travelers be-
tween different places (Thompson v.
Lacy, 3 B. & Ald. 283; Calye's Case,
§ 619.] IBAILMENTS. 897
come on a special contract to board, i.e., take up their residence
at the hotel for the time being, are termed boarders."
JCiability to Guest.—An innkeeper insures the safety of the
property of the guest intrusted to his care, and he is not excused
for any loss unless caused by the act of God, the public enemy
or the fault of the guest.” -
At common law the innkeeper could not relieve himself from
responsibility by posting notices in the rooms. Now, however,
by statute in England and many of the states he may restrict
his liability to a certain extent by strict compliance with the
terms of statutes enacted for the purpose.”
What constitutes a delivery into his care varies according to
the nature of the article." It is generally sufficient if the article
is in the inn impliedly under his care.” *x.
The manner of delivery of money and other valuables may be,
and usually is, prescribed by the innkeeper; and if the guest is
properly notified of such regulations, either by posting printed
slips in each room, or by actual notice, the host is not respon-
sible.” -
To Boarders.--The hotel-keeper is not responsible for the
loss of a boarder's property unless he has been guilty of negli-
8 Co. 31), but modern law has aban-
doned this idea. Wintermute v.
Clark, 5 Sandf. 242; Walling v. Pot-
ter, 35 Conn. 183; Magee v. Pac. Imp.
Co., 98 Cal. 678; 35 Am. St. Rep. 199.
1 Moore v. Long Beach D. Co., 87
Cal. 483; 22 Am. St. Rep. 265; Orchard
v. Potter, 35 Conn. 183–185.
Boarder and guest distinguished.—
Fixing of time and price will not
change the character of the relation-
ship so that the guest will become a
boarder. Berkshire Co. v. Proctor, 7
Cush. 417; Pollock v. Landis, 36 Iowa,
651; Fay v. Imp. Co., supra; Hall v.
Bike, 100 Mass. 495; Norcross v. Nor-
cross, 53 Me. 163. An army or navy
officer having no fixed home, but
spending his time at hotels, is a guest
(Hancock v. Rand, 94 N. Y. 1); but
a railway conductor, who stops at
hotels located at the end of his usual
trip, has been held to be a boarder.
Horner v. Harvey, 3 N. M. 307. See
McDaniels v. Robinson, 26 Vt. 316.
2 Cooley's Elem. of Torts, 366;
Bowell v. De Wald, 2 Ind. App. 303; 50
Am. St. Rep. 246; Sholtz v. Wall, 134
Pa. St. 262; 19 Am. St. Rep. 686. In
several states the innkeeper is not
held to the liability of an insurer.
The rule in these states is that the
loss of the goods makes out only a
ſprima facie case of liability, and the
innkeeper may exonerate himself
by showing that there was no negli-
gence on his part. Eden v. Drey, 75
Ill. App. 105; Cutter v. Bonney, 30
Mich. 259. -
3 Chamberlain v. West, 37 Minn. 54;
Cooley's Elem. of Torts, 267.
4 Clutt v. Wiggins, 14 Johns. 175;
Piper v. Manny, 21 Wend. 282.
5 Story on Bailm. 471; Cayle's Case,
8 Co. Rep. 32.
6 Kellogg v. Sweeney, 1 Lans. 397.
898 THINGS. [$ 619.
gence, either personally or through a servant, where he has
exercised ordinary care in the selection of the servant."
Lien.— Because of this extraordinary liability, an innkeeper
has a lien on the goods and baggage of his guest for his rea-
sonable charges.”
Such lien covers all goods brought by the guest to the hotel,
even if they are goods of a third person; but he cannot seize
and take from his guest other articles and subject them to the
lien.”
Forwarding merchants are those who, for compensation, re-
ceive and forward goods, advancing the transportation charges."
He is responsible only for ordinary care in the selection of
carriers.
Factors (or other bailiffs) are those to whom goods are con-
signed by the principal or owner, to be sold by him for a com-
mission. He is responsible for reasonable skill and ordinary
care of the goods, and bound to follow the instructions of the
principal.”
Sleeping-car proprietors furnish cars to railroads, reserving the
right to collect pay for the use of the berths. They put their
own conductors and porters in charge,” and take charge of the
personal property of the travelers, much as do innkeepers, but
they are not common carriers." *.
Liability.—Their duty is to exercise reasonable care for the
safety of the baggage brought by the passenger into the car,”
but they are not insurers.”
1 Taylor v. Downey, 104 Mich. 502;
29 L. R. A. 92; Moore v. Long Beach
Co., 87 Cal. 483; 22 Am. St. Rep. 265.
2 Pollock v. Landis, 36 Iowa, 651;
Case v. Fogg, 46 Mo. 44.
3 Singer Mfg. Co. v. Miller, 52 Minn.
516; 38 Am. St. Rep. 568.
4 He has no property in the vessels
or wagons in which the goods are
transported and no interest in the
freight. Bouvier's Law Dict. 610;
Blossom v. Griffin, 13 N. Y. 569; May-
bin v. S. C. Ry. Co., 8 Rich. Law, 240;
64 Am. Dec. 753.
5 Bouv. Law Dict. 370; Marfield v.
Goodhue, 3 N. Y. 62; Brown v. MC-
Gran, 14 Pet. 479.
6 Pullman P. C. Co. v. Matthews, 74
Tex. 654; 15 Am. St. Rep. 873.
7 Notes 26 Am. St. Rep. 332.
8 Pullman P. C. Co. v. Matthews, 74
Tex. 654; 15 Am. St. Rep. 873; Car-
penter v. Railroad Co., 124 N.Y. 53.
9Woodruff Sleeping-Car Co. v.
Diehl, 84 Ind. 474; Pullman P. C. Co.
v. Gavin, 93 Tenn. 53; Pullman P. C.
Co. v. Smith, 73 Ill. 360; Duval v.
Pullman P. C. Co., 62 Fed. Rep. 265;
Lewis v. New York P. C. Co., 143
Mass. 267. The contrary is held in a
few cases. Pullman P. C. Co. v. Lowe,
28 Neb. 239.
§ 619.]
S99)
IBAILMENTS.
Jocatio mercium vehendarum is the carriage of goods for
hire."
There are two species of this bailment, viz.: Private and
public, or common carriers.”
A private carrier is one who occasionally transports goods
from place to place on a special employment for or without
compensation. The latter class have had sufficient considera-
tion under the head of mandatum.
Private carriers for hire are liable only for ordinary dili-
gence.”
The courts are not in harmony in allowing a lien to private
carriers for charges.” The reason for this divergence is that the
lien is given to compensate for the extra hazard of insuring the
safety.
A common or public carrier of goods is one who engages in
the business of transporting goods or freight on land or water
for all who choose to employ him for reward.”
He obtains a
special property in the goods, and one who steals them may be
indicted as having stolen the goods of the carrier."
The proprietors of stage-coaches, Omnibuses, railways, also
ship-owners, draymen, etc., belong to this class."
The business being a public one, there is no choice but to
accept goods tendered for transportation,” if of the kind the
carrier holds himself out to carry,” providing the owner of the
goods will pay the freight."
If he refuse transportation of goods properly presented, he
must respond in damages to the owner.”
1. It is usual to say carrying from
place to place, but the latter words
are implied.
* Coggs v. Bernard was a case of
private carrier.
3 United States v. Power, 6 Mont.
271.
4 Hutchinson on Carriers, $ 46;
Jones on Liens, sec. 276. Contra,
Fuller v. Bradley, 25 Pa. St. 120.
5 Dwight v. Brewster, 1 Pick. 50;
Liverpool Steam Co. v. Phenix Ins.
Co., 129 U. S. 397. A railroad carry-
Žng mail is not a common carrier of
the mail. Central R. R. Co. v. Lam-
phey, 76 Ala. 357. Nor is a raftsman.
of logs. Shaw v. Davis, 7 Mich. 318.
6 Hutchinson on Car., § 425.
7 Redfield on Com. Car., sec. 21.
8 Kirby v. Western Union Tel. Co.,
4 S. Dak. 105; 46 Am. St. Rep. 765.
9 Varble v. Bigley, 14 Bush, 698;
Schloss v. Wood, 11 Colo. 287.
10 Citizens’ Bank v. Nantucket S. B.
Co., 2 Story, 16; Kirtland v. Mont-
gomery, 1 Swan, 452; Chicago, etc.
R. R. Co. v. Jones, 149 Ill. 361; 41
Am. St. Rep. 278.
11 He may refuse where goods are
improperly packed, or otherwise unfit
for carriage (Union Ex. Co. v. Gra-
ham, 26 Ohio St. 595), or where there
is good ground to believe that goods
will be harmful to other goods al-
900
[$ 619.
THINGS.
The carrier undertakes to carry only by the usual and cus-
tomary routes."
Delivery to Carrier.—The trust reposed in the
basis of his liability,” and nothing short of a complete delivery
to him will raise the liability. Where a passenger retains cus-
tody of baggage the carrier is responsible only as an ordinary
bailee for hire.”
The delivery must also be for immediate transportation, other-
wise he will be responsible only as warehouseman.*
No receipt, bill of lading, or other writing is necessary in
order to constitute a delivery and acceptance,” but where such
are given their terms cannot be varied by parol."
Liability for Loss-Unless otherwise provided by contract,
a common carrier is an insurer of the goods he carries against
loss or damage, except in the following cases: "
1. Where the loss is occasioned by the act of God.”
3 Acts of the public author-
act of the public enemy.”
carrier is the
ready received. Nitro-Glycerine Case,
15 Wall. 524. The duties and obliga-
tions may be enforced through the
courts and legislative power. Lough
v. Outerbridge, 143 N. Y. 271; 42 Am.
St. Rep. 712.
1 Fish v. Chapman, 2 Ga. 349; Lough
v. Outerbridge, supra; Merchants’
Dis. Tran. Co. v. Kohn, 76 Ill. 520.
2 Hollister v. Nowlen, 19 Wend. 234.
3 Tower v. Railroad Co., 7 Hill, 47.
4 Barron v. Eldridge, 100 Mass. 455;
Iron Mt. Ry. Co. v. Knight, 122 U. S.
79; Grand Tower, etc. Co. v. Ullman,
89 Ill. 244.
5 The Caledonia, 43 Fed. Rep. 681.
6 Louisville, etc. Ry. Co. v. Fulghan,
91 Ala. 555. See BILL OF LADING.
7 Hutchinson on Car., § 1700; Mc-
Carthy v. Louisville, etc. R. R. Co.,
102 Ala. 193; McDuffee v. Railway
Co., 52 N. H. 430; Willock v. Pa. R.
R. Co., 166 Pa. St. 184; 45 Am. St.
Rep. 674.
8 Colt v. McMechen, 6 Johns. 160;
{Davis v. Railroad Co., 89 Mo. 340.
Act of God.— Accidents which are
beyond human power to prevent and
which are the result of natural
causes, such as earthquake, light-
2. The
ning, storm, death, etc., are termed
accidents by the act of God. Long v.
Pa. R. R. Co., 147 Pa. St. 343; Maybin
v. S. C. Ry. Co., 8 Rich. Law, 240; 64
Am. Dec. 753; Merchants’ Dispatch
Co. v. Smith, 76 Ill. 542.
* Coggs v. Bernard, 2 Ld. Raym.
909; Liverpool Steamship Co. v. Phe-
nix Ins. Co., 129 U. S. 397.
Public enemy.—By the public
enemy is understood a nation in
Open War against Our own, and not
merely mobs, highway robbers,
thieves or strikers. Pirates are en-
emies of all the world, and would
come under this head. See Railway
Co. v. Nevill, 60 Ark. 375; 46 Am. St.
Rep. 208.
Strikes.— When there is an un-
reasonable delay in transportation,
Caused by mere refusal of the car.
rier's employees to work, the carrier
is held liable. Read v. St. L., K. C.
& N. R. Co., 60 Nev. 199; Pittsburgh,
Ft. W. & C. R. Co. v. Hazen, 84 Ill.
36; 25 Am. Rep. 422; Haas v. K. C.,
Ft. S. & G. R. Co., 81 Ga. 792. The
rule is otherwise where, as is gener-
ally the case, the strike is accompa-
nied by intimidation and mob vio-
§ 619.] BAILMENTs. 901
ity. 4. The act of the shipper;” or 5. Inherent nature of the
goods;” and even then if his negligence contributes to the loss.
Jäve-Stock.- A carrier of live-stock is not an insurer of such
property.”
He is bound to furnish reasonably safe cars" and to transport
the car and its contents with ordinary prudence, skill and care,
and with reasonable dispatch.”
He is not liable for injury occurring from the inherent vicious-
ness of the stock."
Limitation of Liability.—The policy of the law of common
carriers as well as all other public bailments is to secure the
utmost degree of care and diligence in the performance of the
duties of the bailee.
To enforce this the rule was early established that they were
insurers of the goods intrusted to them,” and that as to pas-
sengers they were obliged to exercise the highest degree of care.
A common carrier has a double liability as to the goods en-
Hence which the carrier cannot by
reasonable efforts overcome. Gris-
mer v. L. S. & M. S. R. Co., 102 N. Y.
563; 55 Am. Rep. 837, and cases cited
in note to Empire Transp. Co. v.
Phila. & R. Coal & I. Co., 35 L. R. A.
|G23.
1 Bliven v. Railroad Co., 46 N. Y.
407.
Acts of public awthority.—Where
goods are seized under legal process,
or are condemned to be destroyed by
the proper authorities as having be-
come, without the owner's fault, ob-
noxious to the police regulations
while in carrier's hands, he will not
be responsible for their loss; as where
they are infected by disease, or are
intoxicating liquors intended for use
Or sale contrary to the laws of the
State. Railroad Co. v. O’Donnell, 49
Ohio St. 489; 34 Am. St. Rep. 579.
2 Gibbon v. Paynton, 4 Burr. 2298;
Phillips v. Earle, 8 Pick. 182. Where
the owner contributes in any man-
ner to the loss, or is guilty of fraud
in not informing carrier fully of the
character of the goods shipped, he
cannot hold the carrier responsible.
McCarthy v. Louisville R. R. Co., 102
Ala. 193; 48 Am. St. Rep. 29.
3 Mynard v. S. B. & N. Y. R. R. Co.,
71 N. Y. 100. Losses occasioned by
the inherent nature of the chattel
are such as decay of perishable fruits
and vegetables, the natural death of
animals, or the viciousness of animals
whereby they injure themselves, etc.
Central R. R. Co. v. Hasselkus, 91 Ga.
382; 44 Am, St. Rep. 37; Selby v.
Wilmington, etc. Ry. Co., 113 N. C.
588; 37 Am. St. Rep. 635.
4 Heller v. Chicago & G. T. Ry. Co.,
109 Mich. 53; 63 Am. St. Rep. 541.
5 Selby v. Wilmington, etc. Ry. Co.,
113 N. C. 588; 37 Am, St. Rep. 635;
Schaeffer v. Philadelphia, etc. R. R.
Co., 168 Pa. St. 209; Richmond, etc.
R. R. Co. v. Trousdale, 99 Ala. 389.
6 Heller v. Chicago & G. T. Ry. Co.,
supra; Toledo, etc. Ry. Co. v. Hamil-
ton, 76 Ill. 393.
7 Michigan, etc. R. R. Co. v. Mc-
Donough, 21 Mich. 165; Detts v. Chi-
cago, R. I. & Pac. Ry. Co., 92 Iowa,
343. w
8 See supra, p. 900.
902 THINGs.
[$ 619.
*
trusted to his care; one as an insurer, and the other in regard
to his negligence or care, although it would seem that the former
includes the latter." -
It is uniformly held that the liability as insurer may be lim-
ited either by express stipulations or by notice brought home to
the bailor.” . .
A common carrier cannot refuse to accept goods for trans-
portation if the shipper declines to waive his rights with re-
spect to the carrier's common-law liability.” .
In most of the states, on the ground of public policy, stipu-
lations against the liability of carriers from the consequences
of their own negligence are held invalid.” A few states up-
hold such contracts to the extent even of exempting against
gross negligence.” Other states distinguish between gross and
1 Railroad Co. v. Tockwood, 17
Wall. 363.
2 Railroad Co. v. Lockwood, supra;
Liverpool, etc. S. S. Co. v. Phenix Ins.
Co., 129 U. S. 397; Inman v. Railway
Co., id. 128.
3 McMillan v. M. S. R. R. Co., 16
Mich. 111; Mich. Cent, R. R. Co. v.
Hale, 6 Mich. 243; Pierce on Rail-
roads, 416; Mo. Pac. R. R. Co. V.
Fagan, 72 Tex. 127; 13 Am. St. Rep.
776. Statutes have been passed in a
few states to the effect that a com-
mon carrier cannot limit his com-
mon-law liability by contract; e.g.,
Iowa Code, sec. 1308; Rev. St. Tex.
1879, art. 278, tit. 13.
A carrier may limit his common-
law liability by special contract, but
a notice printed on the back of a re-
ceipt, and not signed by the con-
signor, will not constitute a binding
limitation. Railroad Co. v. Manu-
facturing Co., 16 Wall. 318. A con-
dition so printed limiting the car-
rier’s liability to $10, unless extra
payment is made, will be binding
where passenger has had time to ex-
amine it thoroughly before embark-
ing. Merrill v. Grinnell, 30 N. Y. 607;
Dorr v. N. J. St. Nav. Co., 11 N. Y.
485; Kimball v. Rutland, etc. Ry. Co.,
26 Vt. 247; 62 Am. Dec. 567; Anson,
Cont. 18, 19.
Gould v. Hill, 2 Hill, 623, is one of
the earliest cases where this question
was involved, where carrier gave re-
ceipt for goods, stipulating he would
not be responsible beyond the sum
of $200 if they were stolen or lost by
fire. The court here held that the
carrier could not limit his common-
law liability as insurer. Since the /
case of N. J. St. Nav. Co. v. Mer. Bank,
6 How. 344 (1848), the reverse has been
uniformly held. See Morgantown
Mfg. Co. v. Ohio, etc. Ry. Co., 121 N. C.
514; 61 Am. St. Rep. 679; Dixie Cigar
Co. v. Southern Ex. Co., 120 N. C. 348;
58 Am. St. Rep. 795; Birds v. Rail-
roads, 99 Tenn. 719; 63 Am. St. Rep.
856; Terre Haute R. R. Co. v. Sher-
wood, 132 Ind. 121; 32 Am. St. Rep.
239.
4 Cooley's Elem. of Torts, 290;
Abrams v. Milwaukee, etc. Ry. Co., 87
Wis. 485; 41 Am. St. Rep. 55; Chi-
cago, etc. R. R. Co. v. Witty, 32 Neb.
275; 29 Am. St. Rep. 436; Duntley v.
Boston & Me. R. R. Co., 66 N. H. 263;
49 Am. St. Rep. 610; Hudson v. North.
Pac. Ry. Co., 92 Iowa, 231; 54 Am.
St. Rep. 550. -
5 Magnin v. Dinsmore, 56 N. Y. 168;
$ 619.] IBAILMENTS.
903.
ordinary negligence, and, while sanctioning the exemption
against Ordinary negligence, refuse to permit it as against gross
negligence."
Dyany departure from the stipulated method of transportation
the carrier will be considered as having waived his exemptions.
under the special contract.” r -
Limiting a carrier's common-law liability is generally ac-
complished by a printed notice on the ticket or bill of lading.
By this contract mutual concessions are gained. For in-
stance, the carrier escapes his common-law liability as insurer,”
and the shipper gets a lower rate, or through transportation,
8. e., transportation beyond the carrier's route.
Termination of Liability — Wotice.—There are two lines of
decisions relative to this subject.
In 1854 the supreme court of Massachusetts laid down the
rule that a common carrier's liability as insurer of goods ceased
the moment the goods of the consignee were removed from
its cars and placed in a safe place upon its platforms or within
its depots, and from that time until the goods were delivered
to the consignee its liability was that of a warehouseman.”
In 1856 the New Hampshire court laid down a different
rule, holding that the carrier's liability as such did not cease
until the consignee had had a reasonable time after the arrival
of the goods to accept and remove them.”
Jennings v. Railroad Co., 127 N. Y.
438; Rathbone v. N. Y. Cent. & H.
R. R. Co., 140 N. Y. 48.
1 Arnold v. Illinois Central R. R.
Co., 83 Ill. 273.
2 Maghee v. Railroad Co., 45 N. Y.
514; Mer. Dist. Tr. Co. v. Kahn, 76
Ill. 520.
*Southcote's Case, supra; Forward
v. Pittard, 1 T. R. 27.
4 Norway Plains Co. v. Boston &
M. R. Co., 1 Gray, 263; 61 Am. Dec. 143.
This rule is followed in Illinois, In-
diana, Iowa, Georgia, California, Mis-
souri, North Carolina, Tennessee and
South Carolina. See East Tenn., Va.
& Ga. R. Co. v. Kelly, 91 Tenn. 699;
17 L. R. A. 691 and notes; Mer. Disp.
Co. v. Smith, 76 Ill. 542.
* Hutchinson on Car., §§ 373–377;
Moses v. Railroad Co., 32 N. H. 523.
This rule is followed by the courts of
Alabama, Louisiana, Kentucky, New
Jersey, Kansas, Ohio, Vermont, Wis-
consin, New York, Michigan, Minne-
sota, Texas, Connecticut and Penn-
Sylvania. -
See the case of Fenner v. Railroad.
Co., 44 N. Y. 505, which has covered
the doctrine of notice quite thor-
oughly. Mo. Pac, R. Co. v. Nevill,
60 Ark. 375; 46 Am. St. Rep. 208;
Berry v. W. Va. & Pittsb. R. R. Co.,
44 W. Va. 538; 67 Am. St. Rep. 781.
What is a reasonable time within
the meaning of the New Hampshire.
rule is said to be such time as will
enable one living in the vicinity of
the place of delivery, in the ordinary
course of business and in the usual
904.
[$ 619.
THINGS.
Both rules, however, will be modified in a given case by
known usage or special contract." - •,
JDelivery to Consignee.—It is the duty of the carrier to deliver
the goods only to the true owner.” Fraud and imposition do
not excuse;” and he is guilty of conversion except when the
goods are taken from him by a superior legal title or on legal
process.”
A carrier may not abandon goods uncalled for, but is required
to exercise ordinary diligence and care in reference thereto,
storing them in its own warehouse or selecting some other place
reasonably safe, and storing same at the owner's expense.”
Jien.—A carrier has a lien for his charges so long as he re-
tains possession of the goods."
He may preserve the lien, after refusal or neglect of consignee
to receive the goods, by storing in a warehouse." -
Discrimination.”— At common law, and in the absence of
statutory regulations, a carrier may deal with those who em-
ploy him on unequal terms, if such terms are just and reason-
able in each case.”
The question of what is just and reasonable is not easy of
hours of business, to inspect and re-
move the goods. Wood v. Crocker,
T8 Wis. 345; 86 Am. Dec. 773; L. L. .
& G. R. Co. v. Maris, 16 Kan, 333.
1 McMasters v. Railroad Co., 69 Pa.
St. 374; Pindell v. Railway Co., 34 Mo.
App. 675; Dresbach v. Railroad Co.,
57 Cal. 462.
4 Kohn v. Richmond, etc. R. R. Co.,
37 S. C. 1; 34 Am. St. Rep. 726; Pac.
Ex. Co. v. Shearer, 160 Ill., 215; 52 Am.
$t. Rep. 333. What is complete de-
livery is a question of law and fact,
but court may pass upon the ques-
tion where the testimony is not con-
flicting. Whitney Mfg. Co. v. Rich-
..mond, etc., 38 S. C. 365; 37 Am. St.
Rep. 767; Fitchburg Ry. Co. v. Hanna,
16 Gray, 539; 66 Am. Dec. 429.
3 Ibid., note; Mo. Pac. Ry. Co. v.
Beidenheimer, 82 Tex, 195; 27 Am. St.
Rep. 861.
4 Hutchinson on Carriers, $$ 396–7.
Stoppage in transitu is a good de-
fense against the consignee. Mo, Pac.
Ry. Co. v. Heidenheimer, supra.
5 Gregg v. Ill. C. R. R. Co., 147 Ill.
550; 37 Am. St. Rep. 238; Cahn v.
Mich. Cent. R. Co., 71 Ill. 96.
6 Gregg v. Ill. C. R. R. Co., 147 Ill.
550; 37 Am. St. Rep. 237.
7 Ibid.
8 See INTERSTATE COMMERCE.
9 Sargent v. Boston, etc. R. R. Co.,
115 Mass. 422; Menacho v. Ward, 27
Fed. Rep. 529; Root v. Long Island
R. R. Co., 114 N. Y. 300; 11 Am. St.
Rep. 643; Cowden v. Pac. S. S. Co., 94
Cal. 470; 28 Am. St. Rep. 122; Cook
v. Chicago, R. I. & Pac. R. R. Co., 81
Iowa, 551; 25 Am. St. Rep. 512. As
to proper basis of all calculation as
to what is just and reasonable, see
Smyth v. Ames, 169 U. S. 466; St.
Louis & S. F. R. Co. v. Gill, 156 U. S.
649. See also Interstate Com. Com.
v. Ala. Mid. R. Co., 168 U. S. 144;
Parsons v. Chi. & N. W. R. Co., 167
U. S. 447; Tex. & P. R. Co. v. Inter-
state Com. Com., 162 U. S. 197; In-
terstate Com. Com. v. Detroit, G. H.
& M. R. Co., 167 U. S. 633; Wight v.
§ 619.] BAILMENTS. 905
determination. A discrimination against a particular locality
or class of persons would be unjust unless there is some good
reason for it." 4 t -
Connecting Jºnes.”—A carrier is not obliged to accept goods
for shipment beyond his own terminus, but he may by con-
tract become liable as carrier until goods are safely delivered
to the consignee.” -
The rule adopted by the famous English case of Muschamp
w. Lancaster dé Preston Junction R. Co.," that a carrier accept-
ing goods for a point beyond his line thereby takes upon him-
self the duty of delivering them to the consignee, becoming
responsible for the damage or loss thereto, has been followed
in many states,” but the majority of the states have adopted
the rule that, in the absence of an express agreement to the
contrary, a carrier is liable as such only to the extent of his
own line."
He may at all times limit his responsibility to the extent of
his own line, even in those states where the so-called English
rule prevails."
Baggage may be defined as those articles which a passenger
carries with him for convenience, necessity or amusement.
For such articles a carrier is an insurer.” -
TJnited States, 167 U. S. 512; Cincin-
nati, N. O. & T. P. R. Co. v. Interstate
Com. Com., 162 U. S. 184.
1 Chicago R. R. Co. v. People, 67 Ill.
11; 16 Am. Rep. 599. A mere in-
equality of charge is not conclusive
evidence of discrimination. Bayles
v. Kansas, etc. Ry. Co., 13 Colo. 181.
Where a large quantity of freight is
shipped, a lower rate would be just
and reasonable.
R. R. Co. v. Forsaith, 59 N. H. 122;
Schofield v. Railway Co., 43 Ohio St.
571. Or in case of longer distances.
Hersh v. Northern C. Ry. Co., 74 Pa.
St. 188. -
As to eacpress companies.—Rail-
road companies are not obliged to
furnish all independent express com-
panies equal accommodations. The
Express Cases, 117 U. S. 1.
* A connecting carrier is one whose
Portsmouth, etc. '
route, not being the first one, lies
somewhere between the point of
shipment and the destination of the
consignment. He acts as agent of
the first carrier. Nanson v. Jacobs,
12 Mo. App. 125.
3 Ill. Cent. Ry. Co. v. Copeland, 24
Ill. 332; Gray v. Jackson, 51 N. H. 9.
48 M. & W. 421; St. L. So. Ry. Co. v.
Elgin Condensed Milk Co., 175 Ill. 557.
5 Wabash, etc. Ry. Co. v. Jagger-
man, 115 III. 407; Atlanta, etc. R. Co.
v. Tex. Grate Co., 81 Ga. 602.
6 Gray v. Jackson, supra; Condict
v. Railroad Co., 54 N. Y. 502; Central
R. R. Co. v. Hasselkus, 91 Ga. 382; 44
Am. St. Rep. 37.
7 Ill. Cent. R. R. Co. v. Franken-
berg, 54 Ill. 88; Bird v. Railroads, 99
Tenn. 710; 63 Am. St. Rep. 856.
8 Hannibal R. Co. v. Swift, 12 Wall.
262,
906 THINGS.
[$ 619.
As to what would be baggage, and also as to what would be
a reasonable amount, would depend upon the nature of the
journey, the condition in life of the passenger, etc., all of
which are questions of fact for the jury." i
Care and Wegligence — Summary.—In every bailment, as we
have seen, some degree of care is required, but each species has
its peculiar quality, and degree. -
There are cases where the question of the liability of the
bailee to redeliver safely the goods, or be responsible for their
loss or damage, does not depend upon the presence or absence
of negligence.
The degree of care or extent of liability does not depend
upon the presence or absence of a consideration, but upon other
considerations, deemed in the eye of the law sufficient to im-
pose or excuse a high degree of care.
Those bailees who are insurers cannot answer the owner by
saying that they exercised the utmost care.
lute liability to restore.
Theirs is an abso-
A depositum, because he receives the goods to keep without
pay, and is performing an act for the benefit of the bailor, is
Only required to exercise slight care, and is liable only for
e 2
grOSS negligence.
A commodatum being for the accommodation and benefit of
the bailee, and without compensation, the bailee must exercise
1 Tools of trade or implements of
employment may be baggage. Mer-
rill v. Grinnell, 30 N. Y. 594. A right
of action against a carrier is assign-
able; but where the passenger is the
bailee of goods, he alone is the proper
party to bring suit. Weed v. Sara-
toga & Schenectady R. R. Co., 19
Wend. 534. Where a commercial
traveler purchases a ticket of a car-
rier and pays for the transportation
of his samples as excess baggage, the
contract for the transportation of
himself and personal baggage and
that for the merchandise are inde-
pendent, and each will support a
separate action. Talcott v. Wabash
R. Co., 54 N. E. Rep. 1; Merrill v.
Grinnell, supra; Metz v. California,
etc. R. R. Co., 85 Cal. 319; 20 Am. St.
Rep. 228; Oakes v. Northern, etc. R. R.
Co., 20 Oreg. 392; 23 Am. St. Rep. 126;
New York Cent. H. R. R. Co. v. Fra-
loff, 100 U. S. 24. See further as to
what may be taken as baggage, Staub
v. Kendrick, 121 Ind. 226; 6 L. R. A.
619.
2 Southcote's case was a deposit.
where the bailee expressly agreed to
keep safely. Held, that he became
an insurer; but this case has not been
followed. Foster v. Essex, 17 Mass.
479; National Bank v. Graham, 100
TJ. S. 699.
§ 620.] INNKEEPER'S DUTY TO GUEST. 907
the highest degree of care, having regard to the nature of the
article and the circumstances of the case." {
A mandatum being gratuitous and for the benefit of the
bailor, the bailee is required to exercise only slight care, and
is liable only for gross negligence.” -
A pledgee is not an insurer, but by a contract agreeing to ac-
cept and receive the goods as security and redeliver them on
payment, he may make himself liable absolutely to restore
them; he is bound to exercise Ordinary care, and is responsible
for ordinary negligence.” -
Of those bailments falling under the head of locatio the fol-
lowing are required to exercise ordinary care: Artisans,' agis-
ters,” boarding and lodging-house keepers,” wharfingers,' ware-
housemen,” forwarding merchants, factors and sleeping-car
proprietors.” -
Innkeepers and common carriers are insurers."
SEC. 620. Innkeeper's Duty to Guest.—The duty of the pub-
lic hotel-keeper in the reception and treatment of his guest rests
upon different principles. The guest, being a rational being, is
required to exercise due care for his own safety, and the hotel-
keeper is only required to exercise ordinary care and reason-
able diligence. He is not an insurer against accident or death."
Sufficient has been said in reference to the duty to receive
and not to discriminate, the law of the United States against
discriminations being embodied in the amendment to the fed-
eral constitution heretofore spoken of.”
etc. Co., 157 Ill. 554; 48 Am. St. Rep.
341.
1 Prince v. Alabama State Fair, 106
Ala. 340; 28 L. R. A. 716; Alvord v.
Davenport, 43 Vt. 30; Edwards on
Bailm. 138–141; Wilcox v. Hogan, 5
Ind. 546.
2 Story on Bailm., § 174; Coggs v.
Bernard was a mandatum. Tracy v.
Wood, 3 Mason, 132; Dudley v. Cam-
den & P. Ferry Co., 42 N. J. L. 25; Kin-
cheloe v. Priest, 89 Mo. 240.
3 Kimball v. Hildreth, 8 Allen, 167;
Roberts v. Thompson, 14 Ohio St. 1;
McLemore v. Louisiana St. Bank, 91
TJ. S. 27; Drake v. White, 117 Mass. 10;
Preston v. Prather, 137 U. S. 604.
4 Grant v. Button, 14 Johns, 377.
5 Bissell v. Pierce, 28 N. Y. 252;
TJnion Stock Y. & T. Co. v. Mallory,
6 Taylor v. Downey, 104 Mich. 502;
29 L. R. A. 92.
7 Willey v. Allegheny City, 118 Pa.
St. 490; 4 Am. St. Rep. 608; Rodgers
v. Stophel, 32 Pa, St. 111; 72 Am.
Dec. 775. -
8 Ante, p. 895.
9 Amte, p. 898.
10 Amte, pp. 897, 900.
11 Weeks v. McNulty (Tenn., Nov.
12, 1898).
12 Supra, p. 627. The innkeeper may
turn away a would-be guest who is
infected with a contagious disease.
A guest who comes in a disorderly
manner may be refused, and a dis-
908 TEHINGS.
[$ 621.
SEC. 621. Carriers of Passengers.--We have spoken of the
liability of common carriers in reference to the luggage of pas-
sengers, but the same rule does not obtain for the like reason
given in the case of innkeepers. d w
A common carrier is not liable as an insurer of the life or
safety of passengers, but he is bound to exercise the highest
degree of care. In case of an injury by accident a presumption
of negligence is indulged. This is a rule peculiar to the law of
common carriers, and is based upon the policy to stimulate wig-
ilance and the fact that the carrier has much better facilities
for making proof of the circumstances attending an injury."
The applicability of the rule where there is an injury not ac-
companied by an accident disturbing the road or vehicle is
questioned.”
Cooley in his Elements of Torts says: “Presumptions accept
the ordinary and probable as true until it is shown not to be
orderly guest may be removed. But
one turned away without cause, be-
fore or after being received, may
sustain an action. McCarthy v. Nis-
kern, 22 Minn. 90. The state legis-
lature may establish as a regulation
of trade that every citizen, regard-
less of race or color, shall receive
equal accommodation at the hands
of innkeepers and others catering to
public patronage. Donnell v. State,
48 Miss. 661; Ferguson v. Gies, 82
Mich. 358; 9 L. R. A. 589.
1 Gleeson v. V. M. Ry. Co., 140 U. S.
435. In this case it is said: “Since
the decisions in Stokes v. Saltonstall,
13 Pet. 181, and Railroad Co. v. Pol-
lard, 22 Wall. 341, it has been settled
law in this court that the happening
of an injurious accident is in pas-
senger cases prima facie evidence of
negligence on the part of the carrier,
and that (the passenger being him-
self in the exercise of due care), the
burden then rests upon the carrier
to show that its whole duty was per-
formed and that the injury was un-
avoidable by human foresight. The
rule announced in those cases has
received general acceptance and was
followed at the present term in In-
land & Seaboard Coasting Co. v. Tol-
son, 139 U. S. 551.” Eagle Packet Co.
v. Defries, 94 Ill. 598. There is much
diversity of language in the author-
ities upon the point whether the pre-
sumption arises in a case where there
has been no violent accident. In the
case of Railroad Co. v. Pollard, above
cited, the injured woman was stand-
ing in the car combing her child’s
hair when she was thrown down and
injured by a sudden concussion. But
the presumption was held to exist
even in such a case. Hutchinson on
Carriers, $800, cites cases in support
of language of a contrary import.
2 The rule as stated in the text is
very generally indorsed, and applies
where the injury is caused by a de-
fect in the roads, cars or machinery,
or by want of diligence in those em-
ployed, or by any other thing which
the Company can and Ought to con-
trol as a part of its duty to carry the
passenger safely. Thomas v. Phila-
delphia R. R. Co., 148 Pa. St. 180; 15
L. R. A. 416; Doyle v. C., St. P. & K.
C. R. Co., 77 Iowa, 607; Thomp. Neg.
153; Lawson, Pres. Evid. 124.
§ 622.] INSURANCE. 909
true. . . . It is reasonable, when an injury to a railway
passenger is shown, the cause of which is not apparent, to as-
sume that it is chargeable to some want of care in the com-
pany or in some of its agents or servants.”" *
The relation arises by contract, but a passenger is not only
he who is actually riding in the train, vehicle or vessel of the
carrier, but one who contemplates a journey and is already at
the place provided for receiving passengers for the purpose of
taking passage,” equally with one who has already purchased a
ticket and is waiting for the train.” The duty of the carrier
begins when the relation begins, and ends only when it ceases,
and includes the furnishing of safe and convenient platforms,
approaches to the trains and waiting-rooms.” -
Carriers have a right to make and enforce reasonable rules
for the conduct of their business,” and they have a right to
provide different cars for different classes of passengers, pro-
vided they make no unjust discriminations, such as are within
the inhibition of the constitution and the general principles of
the common law." - -
The rule respondeat superior of course applies to the common
carriers, and they are liable for the negligence or even the
wanton, wilful acts 7 of their servants in reference to passengers.
The liability of carriers in such cases rests primarily upon
their agreement or contract, but further upon duties imposed
by law; * and violation of contract is so mingled with negligence
or trespass as to allow election or choice of a form of action,
either in tort or on contract.” - &
SEC. 622. Insurance is a contract to indemnify One against
the consequences of an event uncertain to happen, or the time
of the happening of which is uncertain.
1 Cooley's Elem, of Torts, 280. - 4 C., K. & W. Ry. Co. v. Frazer, 55
2 Spangler v. C. & A. R. R. Co., 31 Kan. 582; C. & A. Ry. Co. v. Scates,
Ill. App. 406. The place must be 90 Ill. 586.
under the control of the carrier. Don- 5 Amte, sec. 528.
ovan v. Hartford St. Ry. Co., 65 Conn. 6 Ibid.
201, 29 L. R. A. 297. In this case it 7 L. S. & M. S. Ry. Co. v. Bodemer,
is held that a person in the street 139 Ill. 596; Bouwmeester v. G. R. &
hailing a street car, intending to take T. Ry. Co., 63 Mich. 557; Cent. Ry. Co.
passage, is not a passenger. Thomp. v. Denson, 84 Ga. 774.
Car. 43; Toledo, etc. Ry. Co. v. Beggs, 8 Donovan v. Hartford Ry. Co., 65
85 Ill. 80. Conn. 201. - -
3 W. & St. L. Ry. Co. v. Rector, 104 9 See ELECTION OF REMEDIES.
III. 296.
910 THINGS. [$ 622.
It will be seen that it bears a close resemblance to wager.
Formerly, at common law, a marine policy of insurance guar-
anteeing profits of a voyage to one not having an interest in
the ship or cargo was allowed."
The common law did not forbid wagering policies of insur-
ance, but by statute 14 Geo. III, ch. 48, it was provided that
no insurance should be made on lives, or any other event,
wherein the party insured had no interest.
. A bottomry bond combines the features of a pledge, hypoth-
ecation or mortgage with those of an insurance contract.”
By this contract the owner or master of a ship may pro-
cure the repairs and supplies necessary * to enable the ship to
complete her voyage, pledging the ship by a contract which
provides that if the ship is lost there shall be no personal lia-
bility.“ .
In this feature the contract is like an insurance except that
the payment is in advance. :
If the ship survives the voyage, and if the debt be not paid,
it may be sold; but there is no personal responsibility beyond
the proceeds of the ship and tackle.” The lender takes the
hazard of the ship's safety, and also furnishes the use of the
1 Buchanan v. Ocean I. Co., 6 Cowen,
319–331.
2Slight differences exist between a
loan on the ship (bottomry) and a re-
spondentia loan or loan on the cargo,
but the same instrument may em-
brace both. Insurance Co. v. Goss-
ler, 96 U. S. 656.
3 The necessity is essential to the
validity of the Contract and the ques-
tion is open to proof. The Grape-
shot, 9 Wall. 129.
The necessity which alone will au-
thorize the hypothecation of a vessel
by the master is twofold in its char-
acter: it must be a necessity of Ob-
taining repairs or supplies in Order
to prosecute the voyage, and the
owner and master must be so lack-
ing in credit as to be compelled to
resort to such an expedient. They
must be unable to procure the re-
quired funds in any other way. In-
surance Co. v. GOSSler, 96 U. S. 645,
citing Thomas v. Osborn, 19 How. 22.
But in Order to establish the lien it
is not necessary to prove absolute
and indispensable necessity. The
Grapeshot, 9 Wall. 129.
4 Id. This feature is essential.
Braynard v. Hoppock, 32 N. Y. 571.
Construction.—Bottomry bonds are
greatly favored in courts of admi-
ralty, and, where there is no suspi-
cion of fraud, every fair presumption
is to be made to support them. The
Prince George, 4 Moore, P. C. 28.
The whole contract must be brought
into view, and interpreted with ref-
erence to the nature of the obliga-
tions between the parties and the
intention which they have mani-
fested. O’Brien v. Miller, 168 U. S.
297.
5 Braynard v. Hoppock, Supra.
$ 622.] INSURANCE. 911
money, and is entitled as compensation to a premium for in-
surance and interest for the use of the money; hence the rate
of premium is not regulated by the usury law."
An insurable interest in the insured is by the modern law
essential to the validity of the contract in any form of insur-
ance.”
An interest which is insurable must be an interest in favor
Of the continuance of the life, and not an interest in its loss
or destruction.” To create such an interest kinship is not nec-
essary.*
A creditor, part owner, or, in case of life insurance, persons
bearing such a relationship to another, whether by consan-
guinity, affinity or contract,” that they may suffer in their legal
rights by accident or death," have an insurable interest."
But
a creditor may not obtain a policy largely disproportionate to
the amount of his claim.”
In such cases it is not essential to the continuing validity
of the policy that the same interest, or any interest, shall con-
tinue; * but in case of insurance on property, the policy usu-
ally stipulates as to the effect of changes of title."
1 Id.; 2 Cooley's Blk. (4th ed.) 457;
The Grapeshot, Supra.
2 Tate v. Com. Bldg. Ass'n (Va.), 33
S. E. Rep. 382. Where there is a real
interest to protect, the contract is
not a wager. Briggs v. Com. M. Ins.
Co., 125 N. Y. 7; 21 Am. St. Rep. 716.
Insurable interest — Estoppel.—
Where plaintiff, who sold land on
which was a building covered by an
insurance policy, took back a judg-
ment for part of the price, and under
the advice of the secretary of the
insurance company, who knew the
circumstances, delivered the deed to
the purchaser without transferring
the policy, and paid the assessments
under the policy for three years, up
to the time of a loss, the company is
estopped from asserting that the pol-
icy was void for want of an insur-
able interest in plaintiff. Light v.
Countrymen’s Mut. Fire Ins. Co., 169
Pa. St. 310. But it is not essential
that th; penetiary have an insur-
able interest. Martin v. Stubbings,
126 Ill. 387; Guardian M. L. Co. v.
Hogan, 80 Ill. 35.
3 Holmes v. Gilman, 138 N. Y. 369;
34 Am. St. Rep. 463; Guardian M. L.
Co. v. Hogan, 80 Ill. 35, 46.
4 Carpenter v. U. S. etc. Ins. Co.,
161 Pa, St. 9; 41 Am. St. Rep. 880.
5 Insurance Co. v. Bailey, 13 Wall.
619. t
° E. g., a woman engaged to be
married has an insurable interest in
the life of her affianced husband.
Chisholm v. Nat. Cap. I. Co., 52 Mo.
213.
7 A creditor may insure the life of
the debtor. Ruse v. Mut. Ben. L. I.
Co., 23 N. Y. 518.
8 Cammack v. Lewis, 15 Wall. 643.
9 Bevin v. Conn. Mut. Co., 23 Conn.
244. Common carriers may insure
freight. Savage v. Corn Exch. I. Co.,
36 N. Y. 655.
10 Bodle v. Chenango Mut. Co., 2
N. Y. 210.
912 THINGS. [$ 622.
And the creditor obtaining any form of insurance is not, un-
less by special contract, limited in his recovery to the amount
of his debt."
Classes of Insurance.— Parties have a right to insure against
lossarising from any cause — death, personal accident, fire, flood,
tornado, lightning, burglary; in fact, there is no reason why
any contingency may not be guarded against by a contract of
indemnity.”
Mutual insurance has attained great prominence within the
last twenty years.” It is effected by the association of many
persons, each contributing ratably to a common fund for the
purpose of indemnifying the members or their beneficiaries
against loss on account of the happening of the event insured
against, whether it be death, accident, sickness, loss of em-
ployment,” etc. The members of such an association are those
to whom the charter is granted and those who come in after-
wards under provisions of the charter or constitution. If the
charter is silent on the question of the admission of new mem-
bers, the whole matter is in the control of the corporation.”
Assessment.—The contribution or premium is collected by
assessment, and the prompt payment of valid assessments is
always a condition to the obligation of the society.”
Jºraternal Societies — Mutual Benéfit Societies.— It has be-
come quite common to unite in One association the features
of a mutual insurange company with those of a fraternal Organ-
ization;' but in order that both features be safely combined,
both should be stated in the charter.
1 Loomis v. Eagle Ins. Co., 6 Gray,
396. Contra, Barbers v. Larnes, AS-
signee, 51 S. W. Rep. 5.
2 Title guarantee insurance is now
common. By this contract one per-
son agrees to indemnify another
against the failure of title to land
granted by a third. See form of such
policy and construction of it. Minn.
Title & Tr. Co. v. Drexel, 36 C. C. A.
50.
3 The subject is exhaustively
treated in Niblack on Mutual Bene-
fit Societies.
*The certificate of membership con-
stitutes (with the constitution and
by-laws of the society) a contract of
insurance. Supreme Council v. For-
singer, 125 Ind. 52; 21 Am. St. Rep.
196; Farmers' Mut. F. Ins. Co. v.
JKnight, 162 Ill. 470.
5 Minnesota v. Sibley, 25 Minn. 387.
6 Farmers' Mut. Fire Ins. Co. v.
Enight, 162 Ill. 470.
7 Because of this feature some states
have by statute distinguished be-
tween pure insurance companies and
those mutual benefit societies by ex-
pressly providing that the latter shall
not be treated as ordinary insurance
companies; e.g., Ill. Stat., ch. 73. Such
societies are not to all intents and
§ 622.]
913
INSTURANCE.
ANATOMY OF A TYPICAL FRATERNAL, MUTUAL BENEFIT
SOCIETY.
*
1. MEMBERSHIP.
{
ſ
1. Of the Corporators
and Members.
122 Ill. 293.
A. FRANCHISES,
2. Of the Corporation.
as a Corporation.
133 Ill. 413.
3. OBJECTS OF THE
CORPORATION.
The fraternal
feature, if not men-
tioned in the Stat-
ute under which .
the association was
in C or p O rated,
would seem to fall
within the principle
of Gas Trust Case,
130 Ill. 268. Ante,
§ 484.
1. Indem?vity by Assess-
nvent.
1. Corporators Who Procure Charter.
2. Members Who Join. After Charter Granted.
ſi. To be a corporation. -
2. To have a common name, sue and be sued,
Contract, take, grant, etc.
3. To have a fixed location, separate and in-
dependent of the residence of the mem-
bers. -
4. To have perpetual succession.
5. The right to make by-laws for the guid-
ance of officers—not inconsistent with
the law of the state.
ſ 1. To prosecute the business designated in
the provision of charter relating to the
object. -
2. To conduct it in the manner pointed out
in the provisions relating to the plan.
*
-
º
ſ The two objects of the organization are en-
tirely distinct.
The indemnity feature is an indemnity to
the living by the bounty of the dead.
A mere compensation made for a considera-
tion paid.
l
2. Charity by Frater.
s 7vity.
1. Head Cownsel.
The chief executive
Office,
2. Head Clerk.
Ministerial Office.
3. Directors.
58 Ill. 444–46.
4. AGENTS OR AGEN- 164 Ill. 427–45.
CI E S OF THE -
CoRPORATION.
4. The Fraternal Or-
ganization.
The prominence of
the fraternal feature
doubtleSS caused the
cieties into classes in
the Illinois laws of 1893
and the designation of
One class as “fraternal
beneficiary societies,”
the other as “aSSess-
ment” companies.
separation of these so-
{ Duty as recorder.
Duty as bookkeeper.
ſ 1. Have the power and duty to manage the
affairs of the corporation.
2. Right to make by-laws—not inconsistent
with the law Of the State.
3. Audit claim.
4. All officers must report to them.
5. Duty to protect the charter.
6. To exercise the corporate powers of the
corporation.
The fraternal feature is essentially differ-
ent and distinct from the indemnity.
It is a charity to the living by the living.
Presides at meetings.
Has general supervision over affairs of the
Society.
1. The Head Camp (or Grand Lodge, or Some
similar designation). The representa-
tive body or congress of the Society.
2. The Local Camps. Constituent Organiza-
tions, useful only in reference to the fra-
ternal functions of the Society.
914 TELINGS. [$ 622
The outline on page 913, made to exhibit the essential fea-
tures of the Modern Woodmen of America, at present the largest
of the fraternal benefit societies, may prove helpful in under-
standing and analyzing other similar societies. .
JForm.—The contract of insurance may be by parol or in
writing, and between single individuals or corporations; in
fact, there is no special feature essential to the formation and
validity of the contract of insurance other than controls other
contracts, although, perhaps, the business is almost entirely
conducted by corporations and transacted in writing, and the
evidence of the contract is called a policy, or a certificate of
membership." g
It should be borne in mind that all state laws relating to the
specific company, and all by-laws and writing referred to in
the written certificate or policy delivered, are a part of the
contract.”
Application.— The contract is usually brought about by an
application for insurance, although, in fact, the applicant is
generally solicited to apply by an agent of the insurance com-
pany, and in such cases the knowledge of facts or conduct of
the agent may estop the company” from insisting upon state-
ments in the application."
Jęepresentations and Warranties.— Statements in the applica-
tion are important because they are the basis of the promise
to indemnify and are generally considered warranties that the
facts stated exist;" and if the property is described as of one
purposes life insurance companies.
Martin v. Stubbings, 126 Ill. 387, and
8 Guardian M. L. Co. v. Hogan, 80
Ill. 35.
cases cited; Niblack on Mutual Bene-
fit Societies, 193.
1 A certificate of membership is
not altogether like a policy of insur-
ance. Martin v. Stubbings, 126 Ill.
387.
? It has been deemed necessary in
some states to provide by statute
against such reference by obscure
clauses in fine print. In Pennsylva-
nia such a statute made void any
such matter referred to unless a
copy was attached to the application
or policy. Ritter v. Mut. Life Co.,
169 U. S. 144.
4 Statements made by medical eac-
aminer.—The medical examiner of
a mutual benefit society is the agent
of the society, notwithstanding con-
ditions to the contrary in the appli-
cation and certificate; and where he
fails to insert the answers to ques-
tions in the application as given by
the assured, his act is the Society’s,
and not the assured’s. Royal Neigh-
bors of America v. Roman, 177 Ill. 27.
5 National Bank v. Union Ins. Co.,
88 Cal. 497; 22 Am. St. Rep. 324;
Wheaton v. N. B. Ins. Co., 76 Cal.
415; Ruggles v. Am. Cent. Ins. Co.,
§ 622.] INSURANCE.
915
character, when it is essentially different, there is no con-
tract." -
In the insurance of property there is generally a survey or
a statement in the application describing the property.”
In life insurance the medical examination upon the state-
ments of the application, and the answers to questions put by
the medical examiner, coupled with the statements in the ap-
plication, are representations upon which the insurer acts.”
The policy or certificate contains the promises and obliga-
tions of the insurer. | - .
Conditions and Covenants.--It is usual to stipulate in the
contract conditions either as to the use to which the property
shall be put," or against changes of title" or the Occupations
which an individual shall follow,” or the places where he may
travel,” or as to the manner of his death,” which shall not be
considered as within the agreement of the parties. Such con-
ditions must be strictly complied with, and a violation will
defeat a recovery except where such conditions fall within
some inhibition of the law, or are void as against public policy.”
Suicide.—A very common condition is that if a party shall
die by suicide the insurer shall not be liable, and such a clause,
if considered to mean a deliberate act of self-killing by a sane
114 N. Y. 415; Menk v. Home Ins.
Co., 76 Cal. 51; 9 Am. St. Rep. 158.
1 Thomas v. Com. N. Ass. Co., 162
Mass. 29; 44 Am. St. Rep. 323.
2 Id. The survey may be in the
office of the company and be referred
to in the policy or application.
Clinton v. Hope Ins. Co., 45 N. Y. 46.
3 Hann v. National Union, 97 Mich.
513; 37 Am. St. Rep. 365; Cobb v.
Mut. Ben. Ass'n, 153 Mass. 176.
4. Wheeler v. Traders' Ins. Co., 62
N. H. 450; 13 Am. St. Rep. 582: Ren-
shaw v. Missouri, etc. Ins. Co., 103
MO. 595.
* In such cases change by any
mode, as by descent, avoids the pol-
icy. Sherwood v. Agricultural Ins.
Co., 73 N. Y. 447; Miller v. Germania.
Ins. Co., 54 Ill. App. 53.
6 Berliner v. Travelers' Ins. Co., 121
Cal. 458; 66 Am. St. Rep. 49; Holli-
day v. Am. Mut. Accident Ass'n, 103
Towa, 178.
7 De Loy v. Travelers’ Ins. Co., 171
Pa. St. 1; Meadows v. Pac. Mut. Life
Ins. Co., 129 MO. 76; Evans v. U. S.
Life Ins. Co., 64 N. Y. 304. .
8 See form of this clause in Ritter
v. Mut. L. Co., 169 U. S. 143; Union
Cas. Co. v. Harroll, 98 Tenn. 591; 60
Am. St. Rep. 873; Willard v. Masonic
E. A. Ass’n, 169 Mass. 288. It is held
in some states that a temporary pro-
hibited use only suspends the policy,
which revives upon discontinuance.
Insurance Co. of N. A. v. Garland,
108 Ill. 220.
9|Dover G. Works Co. v. Am. F. T.
Co., 1 Mar. (Del.) 32; 65 Am. St. Rep.
264.
916 TEIIINGS. [$ 622.
person, is upheld, but is not generally considered to include
an insane act of self-destruction.” . -
Without any stipulation, wilful self-destruction will defeat
liability, it not being within the contract; or if the contract
were payable to a specified beneficiary, and he murder the as-
sured, he could not be allowed to recover.”
It is therefore common to stipulate that death by the hand
or act of the insured, “sane or insane,” shall exempt from lia-
bility, and the courts are in harmony in enforcing the clause,
although there is some confusion as to the condition of mind
and character of act which will exempt, for it is not every
act of self-destruction which will relieve.” The deceased must
have been conscious of the act and its effect, but it is not nec-
essary that he appreciate its moral nature.” -
Jęescission and Change in Policy.—In ordinary contracts it
is entirely within the discretion of the parties to make any
changes which they see fit, but in case of insurance of life a
change cannot always be made in the beneficiary. With re-
gard to ordinary life companies the rule is that no change can
be made without the consent of the beneficiary.
Mutual benefit societies have, as a general rule, provisions
in the constitution or by-laws under which the insured may,
by complying with certain liabilities, name a new beneficiary
without consulting the one formerly named."
Where no reference is made to this subject in the constitu-
tion or by-laws, it is held by some authorities that these socie-
1 Ritter v. Mut. Tife Ins. Co., 169
TJ.S. 139; Supreme Lodge v. Kutscher,
179 Ill. 340.
2 Ritter v. Mut. Life Ins. Co., supra.
As to the degree of insanity, see this
case; Mut. Ins. Co. v. Wisewell, 56
Kan. 765; 35 L. R. A. 258, and note;
Grand Lodge v. Wheeting, 168 Ill.
408; 61 Am. St. Rep. 123.
8 N. Y. Mut. Life Ins. Co. v. Arm-
strong, 117 U. S. 591, approved in 169
TJ. S. 156; Runk's Ex’rs v. Insurance
Co., 28 U. S. App. 612. A distinction
has been made between policies pay-
able to the estate of the deceased
and those payable to a third person,
and it has been held that, where the
policy is payable to the wife of the
deceased or some specific beneficiary,
a sane act of suicide will not defeat
a recovery. Morris v. State Mut.
Life Ins. Co., 183 Pa. St. 563.
4 “If the insured was conscious of
the physical nature of his act, and
intended by it to cause his death, al-
though at the time he was incapable
of judging between right and wrong,
and of understanding the moral con-
sequences of what he was doing.”
Bigelow v. Berkshire Life Ins. Co.,
93 U. S. 284. -
5 Id.
6 Martin v. Stubbings, 126 Ill, 387;
Tane v. Lane, 99 Tenn. 639.
§ 623.] GUARANTY AND SURETY. 91'ſ
ties are not sufficiently distinct from ordinary life companies
to justify a different rule in this regard."
Suit Against Person Causing Zoss.- The subject of insur-
ance, if it be property, may be injured or destroyed by the
wilful or negligent act of a third person, and in such cases the
general rule is that both the insured and insurer have a right
to sue; * and it is no answer to a suit for damages by the owner
against the tort-feasor to show that the assured has been paid
the amount of his insurance policy;” but in case of a suit by
the insured against the insurance company the case is different.”
SEC. 623. Guaranty and Surety.—A guaranty is a contract
or obligation, collateral to some other original contract between
the person whose contract is guaranteed and his obligee, by
which the guarantor warrants the ability of the principal to
fulfill his obligation, and makes himself liable to the promisee
if the fulfillment of the promise cannot be enforced by the ex-
ercise of ordinary diligence.”
Suretyshºp is likewise a contract, collateral to an Original
undertaking of the principal, by which the surety binds himself
to what the original promisor has agreed to do if he does not
perform; e.g., a surety on a bond for the faithful performance
of covenants or agreements does not agree that he will perform,
but he agrees that they shall be done or he himself will answer
in the penal sum stipulated in the bond.” He is not a party to
the principal’s original promise.
It is said that “a surety is usually bound with his principal
by the same instrument, executed at the same time and on the
same consideration. He is an original promisor and debtor
1 Love v. Clune (Colo.), 50 Pac. Rep. 3 Harding v. Townshend, 43 Vt.
34; Weisert v. Muehl, 81 Ky. 336;
Block v. Association, 52 Ark. 201; 20
Am. St. Rep. 166. But many cases
hold the contrary. -
22 May, Insurance, sec. 454, p. 1033;
Hall v. Long, 13 Wall. 367; Hartford
Ins. Co. v. Pennell, 2 Ill. App. 609.
An insurer subrogated for the in-
sured by reason of payment of the
policy may, in a suit against a Com-
mon carrier brought in name of
Shipper, recover full amount of loss
Or damage, without regard to amount
named in policy. Mobile & Mont. R.
Co. v. Jurey, 111 U. S. 585.
536; 5 Am. Rep. 304. In such cases
the insured sues for the use of the
company. United States v. Am.
Tobacco CO., 116 U. S. 468.
4. Niagara Ins. v. Fidelity Ins. Co.,
123 Pa. St. 523; 10 Am. St. Rep. 540.
5 Hall v. Farmer, 5 Den. 484. The
derivation of the word “guarantee º'
is the same as “warrant,” garantir.
Burrill’s Law Dict.; Smith's Mer.
Law, p. 562, note.
6 A surety may execute the con-
tract in some cases. Infra, p. 925.
918 TEIIINGS. - [$ 623.
from the beginning, and is ordinarily held to know every de-
fault of his principal.”
But while it is true that the surety promises with the prin-
cipal and in that sense the contract is an original one, it is also
true that the surety’s contract, whatever its form,” is distinct
from the principal's original undertaking with the creditor,
and is always collateral thereto;" and very frequently the bond
Or obligation which is signed by the principal and surety is an
entirely distinct and different thing from the contract debt or
obligation which the principal has already entered into or be-
come liable upon; * so that in speaking of the contract of Surety
and guaranty being collateral contracts, it should be borne in
mind that they are each collateral to the principal’s original
Obligation, which is not merged in the contract of Suretyship,
and upon which he remains liable.” This is always the nature
of a pure contract of surety.”
Suretyshºp and Guaranty Distinguished.— The contracts are
distinguished in point of form, and they differ substantially in
the nature of the obligation and extent of liability.
The distinguishing feature between suretyship and guaranty
is in the nature of the obligation, which in the case of the guar-
antor is that, if the promisee by the use of diligence cannot com-
pel the Original promisor to pay, he will then respond to him
in damages; or if it be a guaranty of payment, then he agrees
absolutely to pay if the other does not; and in the latter he
makes the same promise that a surety does, except that he does
not make it in the same manner and at the same relative point
Of time.” -
Both the contract of surety and contract of guaranty are con-
ditional upon the non-performance of the principal, but the rea-
son for the non-performance of the principal differs; for the
1 Brandt on Suretyship, sec. 1. 3 Otherwise the contract would be
2 Parol evidence is admissible be- a mere joint contract, and the ques-
tween parties having notice to show tion of Suretyship would not arise.
that a party to a contract is really a 4 For example, surety on a criminal
surety, although there is no indica- bail bond.
tion of it in the contract. Drum- 5 Nugent v. Wolfe, 111 Pa. St. 88.
mond v. Yager, 10 Ill. App. 382; Mor- 6 Infra, p. 921. x-
rison v. Drakely, 40 Conn. 552; Rose 7 Cowles v. Peck, 55 Conn. 251; 3.
v. Wollenberg, 31 Oreg. 269; 65 Am. Am. St. Rep. 44. Compare Brandt on
St. Rep. 828; Bulkeley v. Home, 62 Suretyship, sec. 84. -
Conn, 459; 21 L. R. A. 247. t
§ 623.] GTJAIRANTY AND STURETY. 919
|
surety agrees absolutely that the principal will pay or do, while
the guarantor guarantees or warrants the ability of the princi-
pal to do or pay." -
In other words, the promise of the surety goes to the perform-
ance of the principal’s contract, while the promise of the guar-
antor goes to the ability of the principal to perform.”
It is plain that there is a substantial difference in principle
between the two promises, and that if the creditor is not active
to enforce the obligation it relieves in case of a guarantor,
whereas mere passive negligence will not have the same effect
as to a surety.”
The difference in form between the two contracts indicates
also a substantial difference. -
The contract of suretyship is joint and several with the prin-
cipal’s obligation on the undertaking, and in the same contract
with the principal. It may or may not express that one contracts
as principal and the other as surety. But no contract which is
joined in by the debtor and another can be one of mere guar-
anty.” .
It cannot be said that the surety’s contract is absolute in the
extreme sense of this term. There may be such a degree of
negligence as will discharge a surety, but it must be so gross
as to be evidence of fraud;" or the principal’s refusal to act
may amount to such bad faith as to exonerate the surety."
1 Saint v. Wheeler & Wilson Co., 95
Ala. 362; 36 Am. St. Rep. 210.
* Before an action can be main-
tained against a guarantor it must
be shown that the principal is ºwnable
to perform. “The surety says to the
creditor: “If your debtor will not pay,
I will pay.’ The guarantor says to
him: ‘Proceed first against the prin-
cipal, and if he should not be able to
pay, then you may proceed against
me.” It has been said that there is
no instance in the books of a guar-
antor contracting jointly with his
principal. Much has been written
upon this subject, but we think the
above expresses the true distinction
between the two classes of con-
tracts.” Manry v. Waxelbaum Co.
(Ga.), 33 S. E. Rep. 701.
8 Campbell v. Sherman, 121 Pa. St.
70; 31 Am. St. Rep. 735.
4 Manry v. Waxelbaum Co. (Ga.),
33 S. E. Rep. 701; McMillan v. Bull's
Head Bank, 32 Ind. 11; Saint v.
Wheeler & Wilson Co., supra.
5 Marberger v. Potts, 16 Pa. St. 9,
and cases cited in 31 Am. St. Rep.
738. To discharge a surety from his
contract there must be some positive
act done by the plaintiff to the preju-
dice of the Surety, such as the sur-
render of a security, or extending
the time by a valid agreement, or
such a degree of negligence as to
imply connivance amounting to
fraud. Mayor v. Stout, 52 N. J. L. 35.
6 The rule in New York is that if a.
surety requests the creditor to pro-
ceed against the principal at a time,
920 TE[INGS. [$ 623.
And again, a principal may forfeit his rights against the
surety by affirmative acts, such as extending the time of pay-
ment, or changing the terms of the contract or nature of that
which is contemplated by the contract.” The surety will be
discharged by an alteration of the contract, whether in a ma-
terial point or not.” But the surety is not discharged by the
discharge of the principal in a bond by operation of law."
The Requisites of the Contract are in the Main the Same as Other
Contracts.--It is not necessary that any prescribed form be fol-
lowed in a contract of surety or guaranty. It is sufficient if the
obligation appears from all the words of the contract and the
circumstances; but in case of official bonds, to become binding
as a statutory bond, the formalities prescribed should be strictly
followed, and yet the obligation may exist as a common-law
obligation.” -
Motice of Acceptance.—In case of guaranties of future acts,
it is obvious that the contract cannot be obligatory on the
guarantor until acceptance, and it is thoroughly settled that
he must be given direct and timely notice that the proffered
guaranty is being acted on;" but the notice need not precede
the giving of credit, and in the case of continuing guaranty
need only be within a reasonable time after the limit of credit
has been reached and default made."
when the latter is solvent, and the
creditor neglects so to do, and the
principal subsequently becomes in-
solvent, the Surety is exonerated.
King v. Baldwin, 17 Johns. 384; Rem-
Sen v. Beekman, 25 N. Y. 552. In the
Hast-mentioned case it is held that
want of notice to the creditor of
facts tending to show that the delay
was likely to prove injurious to the
surety makes no difference. The
Tule is substantially the same else-
where, so far at least that the surety
may compel the creditor to proceed
against the debtor. Brandt, Sur.,
§§ 205, 206.
1 Bishop v. Eaton, 161 Mass. 496; 42
Am. St. Rep. 437.
? Douglass v. Reynolds, 7 Pet. 113:
First Nat. Bank v. Pierce, 99 Ill. 272;
Benson v. Phipps, 87 Tex. 578; Bank
of Uniontown v. Mackey, 140 U. S.
220; Union Mut. L. Ins. Co. v. Han-
ford, 143 U. S. 187; National Mech.
B. Ass’n v. Conkling, 90 N. Y. 116;
Page v. Krekey, 137 N. Y. 307; 21 L.
R. A. 409; McCartney v. Ridgeway,
160 Ill. 129; 32 L. R. A. 555.
* Page v. Krekey, supra.
4.Whereatt v. Ellis (Wis.), 79 N. W.
Rep. 416.
5 Amte, sec. 446; People v. Shuman,
10 Ill. App. 364. A bond is valid with-
Out the insertion of the name of the
obligor in the body. Reed v. Kemp,
16 Ill. 449, citing Ex parte Fulton, 7
Cow. 484. It is valid even without
the signature of the principal thereto.
Board of Trustees v. Scheik, 10 Ill.
App. 51—55.
6 Powers v. Bumcratz, 12 Ohio St.
273; Douglass v. Reynolds, 7 Pet. 113.
7 Id.; Manry v. Waxelbaum Co.
(Ga.), 33 S. E. Rep. 701.
§ 623.] GUARANTY AND SURETY. 921
Statute of Frauds.-The fourth section of the statute pro-
vides that no action shall be brought to charge any one on a
special promise to answer for the debt, default or miscarriage
of another, unless the promise or a memorandum thereof shall
be in writing."
Are the contracts of suretyship and guaranty within this
statute P -
A pure contract of guaranty is clearly within the statute,
but because of the idea that a surety is an original undertak-
ing, some confusion of expression exists.
The question presents itself in several phases:
1st. As a contest between the creditor and the surety.”
2d. Petween the principal debtor and the surety on the ob-
ligation to indemnify.
3d. Between sureties in questions relating to the obligation
to contribute to each other or indemnify because of some spe-
cial agreement varying the legal obligation.
4th. Or the contract may be to indemnify and save harmless
one who becomes surety to a third person upon an obligation
to a fourth, where the person promising does not bind himself
to the principal creditor (fourth person), or with the principal
debtor (third person), or in any way become a party to the
surety contract.
A contract to be within the statute of frauds must be a col-
lateral contract to answer for the principal’s default on an
original obligation.” It is plain the prime distinction for the
purpose of determining whether these contracts concerning
suretyship are within the statute is as to which of them con-
stitutes an original and what a collateral agreement.*
But every pure contract of surety is a collateral contract
agreeing to answer for the debt, default or miscarriage of an-
other, and equally with the contract of guaranty within the
statute,” though there are several contracts similar to or in-
I On the construction of the stat- 467; Beaman v. Russell, 20 Vt. 205;
ute see ante, sec. 600, p. 739, and notes. Andrews v. Spence, 72 Ind. 315; 37
2 There is much confusion in the Am. Rep. 162; Brandt on Surety, $58.
decisions on these questions. 5 Brandt on Surety, Sec. 41, p. 56,
8 Blank v. Dreher, 25 Ill. 293; ante, note 2; Mallory v. Gillett, 21 N. Y.
p. 739, note 3; Nugent v. Wolfe, 111 412; Aldrich v. Ames, 9 Gray, 77,
Pa. St. 88. Supra.
4 Id.; Chapin v. Lapham, 20 Pick.
922 THINGS, [$ 623.
volved in surety contracts which are not within its provisions.
It is this original contract between the creditor and the surety,
in which the principal and surety bind themselves to the third
person (creditor), which is within the statute."
When the question arises on the contract between the prin-
cipal and surety to indemnify, if it is claimed that the contract
is something more or different than the obligation arising by
operation of law or quasi-contract,” it seems equally plain that
the contract is as to them in no sense a contract to answer for
the debt, default or miscarriage of a third person, and hence
not within the statute.”
If the contest is between co-sureties, and it is claimed that
the contract is other or different from the legal obligation to
contribute, e. g., where one surety signs an agreement with
the other to indemnify and to keep him harmless, it is equally
clear that this contract, for the same reason, is not within the
statute of frauds.” *
Where the contest arises under the fourth supposed situation,
it would seem on principle that the promise to indemnify was
not a promise to answer for the debt or default of the original
debtor,” and consequently the contract was not within the stat-
1 “The contract upon which they
are co-debtors or sureties only eac-
presses the relation between them
and their creditor, and is entirely
distinct from the right of contribu-
tion which exists between them-
selves.” Rose v. Wollenberg, 31 Oreg.
269; 65 Am. St. Rep. 827. The obliga-
tion to indemnify or contribute is
not express, but arises by law. Infra,
p. 424. The main cause for the
confusion in decisions results from
not clearly distinguishing between
pure contracts of Suretyship and
joint contracts of purchase, or be-
tween it and the original contract
wherein the obligation to the Cred-
itor has its inception, and the con-
tract of the principal to indemnify,
or contracts between sureties to con-
tribute with each other. Bugbee v.
|Rendricksen, 130 Mass. 437; Wain-
right v. Straw, 15 Vt. 215; Gibbs v.
Blanchard, 15 Mich. 292; Hetfield v.
Dow, 27 N. J. L. 440; Eddy v. David-
SOn, 42 Vt. 56.
2 Drummond v. Yager, supra; Paul
v. Berry, 78 Ill. 158; Rose v. Wollen-
berg, Supra.
3 “The principal who has obtained
the benefit of the contract or suffered
the forfeiture of his bond or obliga-
tion is always bound to indemnify
his surety who has sustained loss
upon his account, and he cannot in-
terpose the statute of frauds to pre-
vent it. . A promise to indem-
nify does not, as it appears to me,
fall within either the words or the
policy of the statute of frauds.” Rose
v. Wollenberg, supra.
4 Rose v. Wollenberg, supra; Horn
v. Bray, 51 Ind. 555; Ferrell v. Max-
well, 28 Ohio St. 383; 22 Am. Rep.
393.
5 Eastwood v. Kenyon, 11 A. & E.
438.
§ 623.] GUARANTY AND SURETY. 923
ute of frauds; and such it is believed is the rule sustained by .
the weight of authority in America." There has been great
conflict in England and America, and there are a number of
states yet adhering to the opposite doctrine.”
JForms of Guaranty.—There is a difference between a con-
tract guaranteeing the payment or fulfillment of an obligation
and one guaranteeing the collection of a debt.”
In the former case the guarantor is liable immediately upon
default; in the latter only after reasonable diligence has been
exercised to make the collection.*
While the guarantor of payment assumes the same obliga-
tion as to time of performance as does the original debtor or
principal promisor, his obligation is always conditional upon
good faith and diligence on the part of the creditor. De-
mand of payment must be made by the creditor (if the prin-
cipal is solvent) and notice given to the guarantor of failure
to pay.
dorsers of commercial paper.”
These are as essential as are the same in case of in-
Scope of Surety’s Contract.— The contract of surety is strict-
'ssimº.juris, i.e., to be strictly construed as it is expressed, and
it will not be extended by implication." But if a contract drawn
1 Anderson v. Spence, 72 Ind. 315;
37 Am. Rep. 162.
2 Nugent v. Wolfe, 111 Pa. St. 88;
56 Am. Rep. 291. The Indiana case
above cited contains a review of the
authorities pro and con.
3 The difficulty in these cases is to
determine whether the guaranty is
an absolute one of payment, or the
conditional one of solvency, which
requires the exercise of due diligence
in prosecuting the collection of the
note. See illustrations, Cowles v.
Peck, 55 Conn. 251; Brandt on Sure-
tyship, Sec. 84. A guaranty to pay
interest runs only to the maturity of
the note. Rector v. McCarthy, 61
Ark. 420. - Af
* Craig v. Parkis, 40 N. Y. 181.
* Oxford Bank v. Haynes, 8 Pick.
423; 19 Am. Dec. 334; Powers v.
Bumcratz, 12 Ohio St. 273.
* Coleman v. Lamb, 15 Wend. 329;
Powers v. Bumcratz, supra; Lafay-
ette v. James, 92 Ind. 240; National
Mech. Ass’n v. Conkling, 90 N. Y. 116.
“C. executed to plaintiff a bond
with sureties, which recited his ap-
pointment by defendant as book-
keeper, and was conditioned that he
should faithfully perform the duties
of any other office, trust or employ-
ment relating to the business of said
association which may be assigned
to him, or which he shall undertake
to perform. He served several years
as book-keeper and then was ap-
pointed receiving teller, and while so
acting embezzled funds of the bank.
Held, that the sureties were not lia-
ble.” National Mech. Bldg. Ass’n v.
Conkling, 90 N. Y. 116. See Ameri-
can Dist. Tel. Co. v. Leming, 139 Pa.
St. 594; First National Bank of Balti-
more v. Gerke, 68 Mol. 449.
924. THINGS. [$ 623.
by the surety is susceptible of two meanings, that which is least
favorable to the person drawing it will be taken." -
Eoistence of a Valid Original Obligation Essential,—The con-
tracts of guaranty and suretyship being collateral to another
principal indebtedness, its existence, validity and continuation
depend upon that of the original debt, or the terms of the guar-
anty.” If the original debt is invalid the surety is not bound;
if it be extinguished, he is released.
If the original contract is in any manner departed from with-
out the consent of the surety, the contract of guaranty is ex-
tinguished.” -
There is no discretion in the creditor and the principal debtor
to depart from the strict performance of the contract.
Surety’s Rights.-After default of the principal the surety
has rights which must be respected."
He has a right to have proceedings instituted, and for that
purpose may use the name of the creditor and make use of all
securities by indemnifying him against costs.” -
Subrogation — After Payment by Security.— A surety who
is obliged to pay the debt is entitled to stand in the shoes of
the creditor and be subrogated to his rights, not only against
the principal debtor, but against the other sureties, if there be
several, and he is entitled to all the securities which the cred-
itor may have."
For the purpose of protecting the surety who has paid the
debt, it is not to be considered as extinguished, and will be
kept alive for the benefit of the surety."
Sureties on the bond of a contractor, upon failure of the lat-
1 American Surety Co. v. Pauly,
170 U. S. 133. This rule applies to
contracts generally.
2 Gay v. Ward, 67 Conn. 147.
3 Miller v. Stewart, 9 Wheat. 681;
First Nat. Bank v. Pierce, 99 Ill. 272;
Myers v. Fairbury, 78 id. 257; Brandt
on Suretyship, sec. 415. Fraudulent
concealment of facts which will re-
lease a guarantor must have oper-
ated as an inducement to him to
bind himself. Lachman v. Block, 47
Ta. Ann. 505.
4.Ante, p. 7; Brandt, secs. 205, 206.
5 Id.; Rockingham Bank v. Clag-
gett, 29 N. H. 292; Remsen v. Beek-
man, 25 N. Y. 555.
6 Hubbell v. Carpenter, 5 N. Y. 171;
Tewis v. Palmer, 28 N. Y. 271;
Wright v. Grover, etc. Co., 82 Pa. St.
80; Elliott v. Abbott, 12 N. H. 549;
37 Am. Dec. 227; Ezzard v. Bell, 100
Ga. 150; Pratt v. Thornton, 28 Me.
355.
7 A judgment paid by the surety
should be assigned to him, or to a
trustee for his benefit. Prebles v.
Gay, 115 N. C. 38.
§ 624.] INEGOTIABLE INSTRUMENTS. 925
ter, may complete the contract in order that they may collect
the consideration."
ſeemedies Between Sureties.— Upon the principle that equality
is equity,” if one of several Sureties pays the debt, he may at
once sue his co-sureties for their proportional share of the
amount paid.” It is not necessary that he should have paid the
debt in money. Payment by a promissory note,” or payment
made by a third person on the procuration of the surety, is suf-
ficient.”
A surety may recover at common law under the common
or special counts," or he may proceed in equity to compel the
co-Sureties to bear an equal share of the burden. In equitable
proceedings the principal must be made a party so that the
equities between all the parties may be adjusted and settled.”
Upon the same principle of equity a surety is bound to bring
into hotchpot for the benefit of his co-sureties a security given
him by the principal,” although he only consented to become
surety on condition of such security, and though the other sure-
ties were not aware of it.”
If one of several co-sureties subsequently take a security from
the principal for his own indemnity, it inures to the common
benefit of all the sureties." -
SEC. 624. Negotiable Instruments.-The distinction between
assignability and negotiability of choses has been mentioned."
The topic now under consideration deals only with the spe-
cies of choses in action which are negotiable as distinguished
from those merely assignable.
..:
' ' 'x
1 Rhode v. Biggs, 108 Mich. 446.
2 The obligation of contribution is
founded upon the above stated equi-
table principle and not upon contract.
Drummond v. Yager, 10 Brad. 380;
Aspinwall v. Sacchi, 57 N. Y. 331.
3 Norton v. Coons, 6 N. Y. 33; Adams
v. Hayes, 120 N. C. 383; Pace v. Pace,
95 Va. 792.
4 Ryan v. Knesor, 76 Mo. App. 496.
5 Meeske v. Pfenning's Estate
(Mich.), 79 N. W. Rep. 795.
6 Porter v. Horton, 80 Ill. App. 333.
7 Craythorne v. Swinburne, 14
Vesey, 161,
8.Moore v. Thompson, 100 Ky. 231.
9 Steele v. Dixon, L. R. 17 Ch. Div.
825.
10 Dering v. Earl of Winchester, 1
L. C. Eq. (3d Am. ed.), 162, 163; Agnew
v. Bell, 4 Watts, 31; Gibson v. Shee-
han, 5 App. D. C. 391: 28 L. R. A.
400. If a surety collects upon an in-
demnity bond from a surety com-
pany, he holds the indemnity intrust
for all. Such surety company can-
not compel contribution from the co-
sureties. Gibson v. Sheehan, supra.
11 Amte, sec. 613.
926 THING.S. [$ 624.
The transfer of any chose was contrary to the policy of the
common law; but modern law favors the transfer of all rights
in the nature of property rights as distinguished from mere
personal torts.”
Origin of Wegotiability.—The common law took little ac-
count of commercial transactions, and it was not until the
development of commerce with foreign nations that that sys-
tem of law which has contributed so much to her prosperity
and prestige, namely, maritime and mercantile law, obtained
recognition in England as a branch of the common law.”
The law merchant is not the invention of the lawyer or the
legislature. It is not the special creation of any time or coun-
try. Being the regulator of commerce, it does not, any more
than commerce, notice state lines or national boundaries. It
is an elaborate system of rules and usages found convenient by
the merchants of the world, and sanctioned by the courts as a
part of the law of nations.”
Whatever the jealousy of the ancient common-law lawyers
led them to say, Lord Holt and Lord Mansfield, who developed
it into a model for future generations, never scrupled to give
credit to the ancient fountains from which they so freely
drew — the jus gentium of the civil law as developed by the
merchants of Europe into an elaborate system called the Leæ
Mercatoria, uniform in its provisions and universal in its oper-
ation throughout the commercial world.”
Originally Regarded as International.-The remarks of Mr.
Justice Foster in a New Hampshire case" show the cosmopoli-
tan spirit of the law merchant: “Jus autem, gențium omni
Jºumano gener; commune est; nam, usu exigente, et human is ne-
cessitatibus. (The law of nations is common to all mankind,
1 Amte, pp. 800–801, notes; 2 Cooley's
Blk, (4th ed.) *468. -*.
* Amte, p. 799, note 5; 1 Dan. Neg.
Inst., 1 et seq.
* Infra, p. 937, note 1.
4 Amte, pp. 243, 247, secs. 201, 204; 1
Wilson’s Works, 335. It is so treated
by Caines in his Lex Mercatoria
(1802), and Beawes. But it does not
deny the power of the state to estab-
lish a rule of contract or liability
different from that universally rec-
Ognized elsewhere. Phipps v. Hard-
ing, 70 Fed. Rep. 467.
5 Amte, p. 244, note; 1 Wilson's
Works, 337. E. g., in Luke v. Lyde,
2 Burr. 889, Lord Mansfield refers to
the Rhodian Laws, the Consolato del
Mare, the Laws of Oleron, etc.
6 Hill v. Spear, 50 N. H. 253; 9 Am.
Rep. 208.
§ 624.] NEGOTIABLE INSTRUMENTS. 927
for nations have established certain laws, as occasion and the
necessities of human life required.) . . . Upon the founda-
tion of this doctrine rests the whole system of sales, agencies,
credits, and negotiable instruments; “and,” says Judge Story,
“no more forcible application can be propounded of this im.
perial doctrine than to the subject of international private con-
tracts.” . . . With peculiar cogency does the doctrine
apply to the positive necessities of a country like ours, com-
posed of thirty-seven (now forty-five) distinct sovereignties, in
strictness wholly independent of local laws, but most essen-
tially dependent for their general prosperity upon the defer-
ence, respect and regard for each other's peculiar policy which
the comity of nations demands.””
Says Mr. Justice Wilmot, in Pilland v. Mierop,” “to con-
sider this as a commercial case, all nations ought to have their
laws conformable to each other in such cases. Fides servand;
est; simplicitas juris gentium praevalet.” (Faith must be kept;
the simplicity of the law of nations must prevail.) *
And at a comparatively recent date Mr. Justice Clifford con-
firmed this view, saying: “Commercial law is a system of juris-
prudence acknowledged by all maritime nations, and upon no
subject is it of more importance that there should be, as far as
practicable, uniformity of decision throughout the world.”
New Wegotiable Instrument Law.—The desire and necessity
of restoring to this body of law its pristine force as a uniform
international code is the moving cause of the recent commend-
able attempts to codify the negotiable instrument law."
No motive could be more worthy, and the result cannot be
too highly commended.
But no code can cover every situation, and therefore the acts
provide that “In cases not provided for in this act, the rules
of the law merchant shall govern.”
It is unfortunate that an opening is thus left so well cal-
culated to let in the very discord which it is the purpose of
1 Story's Confl. Laws, sec. 242; *Railroad Co. v. National Bank,
Phipps v. Harding, supra. 102 U. S. 32.
2 Hill v. Spear, 50 N. H. 253; 9 Am. 6 Fifteen states have already
Rep. 208. adopted it. See a valuable discussion
33 Burr. 1672.' of its provisions by G. W. Bates, Chi-
4 Burrill’s Law Dict, cago Legal News, vol. 31, p. 444.
59
928 THINGS. [$ 624.
the act to remedy, viz., the discordant construction of the act
and the rules of the law merchant.
Practically the whole law of negotiable instruments has
heretofore been the law merchant. The trouble has arisen
from the multitude of tribunals which have had to declare
what the law merchant is on a given point. One state holds
it to be one thing, another perhaps the opposite. Hence the
confusion.
The remedy is obvious, and was suggested by the author of
the Ordinance of 1787, viz., to provide in the state statutes that
the law merchant as declared by the supreme court of the United
States shall constitute conclusive evidence of the law merchant.
We may then have some hope of the desirable uniformity."
Megotiable Distinguished from Other Choses in Action.—We
have seen that choses in action embrace not only promises to
pay money, but rights of action growing out of torts to per-
sonal property.”
The law of negotiable paper, although it always deals with
a class of choses, does not embrace all these.
Negotiable instruments only embrace choses promising to
pay money, and by the law merchant certain of these are given
the quality of negotiability.
"Words of Wegotiability.—The character of every contract is
determined by its language, and the negotiable quality of a
chose is at common law given by the words “to order” or “to
bearer.”4
1 Mr. Dane, quoted ante, p. 249, note able in the full sense. In Hodges v.
3. This is all the more imperative
for the reason that the supreme
court will not follow the local courts
on questions of commercial law.
See discussion and review of doc-
trine. Phipps v. Harding, 70 Fed.
Rep. 468.
2 Ante, sec. 95, p. 125, note.
3 Benj. Chalm. Dig., arts. 8, 107;
Chitty on Bills (12th ed.), *151, note2;
Turner v. P. & S. Ry. Co., 95 Ill. 134.
In Illinois a bill payable to one, or
bearer, must be indorsed; otherwise
as to one payable to bearer. Id.
4. A bill in form payable to Jones,
or bearer, was not Originally negoti-
Steward, 1 Salk. 125 (1693), an action
on an inland bill of exchange by
indorser against drawer, Lord Holt,
held: “1st. A difference was taken
between a bill payable to J. S., or
bearer, and J. S., or order; for a bill
payable to J. S., or bearer, is not as-
signable by the contract, so as to
enable the indorsee to bring an ac-
tion if the drawer refuse to pay, be-
cause there is no such authority
given to the party by the first con-
tract, and the effect of it is only to
discharge the drawee, if he pays it to
the bearer, though he comes to it by
trover, theft or otherwise. But when
§ 624.] NEGOTIABLE INSTRUMENTS. 929
Statutory Megotiability.—A mere written acknowledgment of
indebtedness or a promise to pay or deliver anything but money
is not, except by statute, negotiable, but if there are words im-
plying a promise to pay money coupled with words of negotia-
bility the instrument becomes negotiable paper."
It was held by Lord Holt” that promissory notes were not
negotiable so as to allow an action of assumpsit in the name of
the holder.
This decision occasioned the statute of Anne, which provided
that they should be regarded as negotiable paper.
It has been the practice of legislatures of states and countries
to extend the character of negotiability to other instruments
than those originally so regarded.”
the bill is payable to J. S., or Order,
there an express power is given to
the party to assign, and the indorsee
may maintain an action. 2d. Though
an assignment of a bill payable to
J. S., or bearer, be no good assign-
ment to charge the drawer with an
action on the bill, yet ‘it is a good
bill between the indorser and indor-
see, and the indorser is liable to an
action for the money; for the in-
dorsement is in nature of a new
bill.’” In Hill v. Lewis, 1 Salk. 132,
“indorsement of this bill (payable to
defendant only, without the words
“or to his order') did not make him
that drew the bill chargeable to the
indorsee; for the words, “ or to his
order,” give authority to the plaintiff
to assign it by indorsement; and it
is an agreement by the first drawer
that he would answer it to the as-
signee. But the indorsement of a
bill which has not the words ‘Or to
his order’ is good, or of the same ef-
fect between the indorser and the in-
dorsee to make the indorser charge-
able to the indorsee.” See the same
doctrine in the United States. Mande-
ville v. Riddle, 1 Cranch, 290, and
elaborate note giving history of nego-
tiability in appendix to that volume,
original edition.
1 Gay v. Rooke, 151 Mass. 115; Benj.
Chalm. Dig., art. 2.
2 Clark v. Martin, 2 Ld. Ray. 757
(1702); 1 Salk. 129; Buller v. Crips, 6
Mod. 29; Mandeville v. Riddle, supra.
3 Cowan v. Hallock, 9 Colo. 572.
E. g.: “The statute 3 & 4 Ann., c. 9,
respecting promissory notes is not in
force in Virginia, but there is an act,
of assembly 1786, c. 29, by which it
is enacted that ‘an action of debt
may be maintained upon a note or
writing, by which the person sign-
ing the same shall promise or oblige
himself to pay a sum of money or
Quantity of tobacco to another; ' and
that ‘assignments of bonds, bills and
promissory notes and other writings
obligatory for payment of money or
tobacco shall be valid; and an as-
signee of any such may thereupon
maintain an action of debt in his
own name, but shall allow all just
discounts, mot only against himself,
but against the assignor, before no-
tice of the assignment was given
to the defendant.” 1 Cranch, App.
367–68. In Mandeville v. Riddle, 1
Cranch, 290, Marshall, C. J., held that
this statute did not create privity
between remote indorsers and the
holder. The present Illinois statute
would embrace a simple written
930 TEIINGS. [$ 624.
PRIVILEGES ACCORDED NEGOTIABLE PAPER.—Certain rights
which rest in intangible obligations of one individual to an-
other, that is, rights in personam, pass by assignment wherever
the policy of the law allows them to be transferred, while other
similar rights, resting on the obligation of a definite person,
are accorded the wider privilege of being negotiable."
There are three especial qualities accorded by the law to
negotiable instruments which mark them as more favored than
Ordinary contracts.
Pºrst. The right of the holder, however remote from and
unknown to the acceptor, to sue on it in his own name, the
doctrine of privity having no application to these contracts;”
and generally wherever the bill is fully negotiable it creates
privity between each and all of the parties, however remote
from each other.”
Second. The peculiar facility of transfer, by which the bill
passes from hand to hand, investing a bona fide holder with a
good title, irrespective of the infirmity of, or want of, title in
him from whom he received it.*
:acknowledgment of indebtedness as
well as a promise to pay in money or
a specific thing. Bilderback v. Bur-
lingame, 27 Ill. 338.
I “These additional rights and priv-
ileges have been conferred upon such
holder by law for good and sufficient
reasons, too well known and under-
stood to need to be stated, but which
are incident to and dependent upon
the attribute of negotiability which
these instruments possess.” Clark v.
Pease, 41 N. H. 414. To be entitled
to this privilege the instrument must
be strictly negotiable. It is said that
a negotiable bill is a “courier without
luggage; ” that is to say, it can have
these incidents of free passage pro-
vided it is not incumbered, but if
anything is inseparably added not
within the idea of negotiability, the
negotiable character of the paper is
destroyed. Overton v. Tyler, 3 Barr,
346; 19 Am. Dec. 645. It was held
in this and other cases that a power
of attorney to confess a judgment
destroyed its negotiability; but such
is not the general rule. Such paper
carries on its face its own history so
that nothing can be alleged against
it, and an innocent holder is only af-
fected by what appears on its face,
or of which he has actual knowledge.
Brown v. First Nat. Bank, 103 Ala.
123; Schneider v. Schiffner, 20 Mo. 571.
* Broom's Max., quoted in note to
Sec. 613; Miller v. Race, 1 Burr. 452;
Master v. Miller, 4 Term Rep. 320; 2
H. Blk. 140. See 1 Cranch, App. A.,
for history of introduction of nego-
tiability; Benj. Chalm., Bills and
Notes, Int. ; 3 Kent, Com. 84; 2 Dan.
Neg. Int., § 769a.
3 For the history of this, see Man-
deville v. Riddle, ante, and 1 Cr.,
App. A., cited above.
41 Dan. Neg. Inst. 1 et seq.; Miller
v. Race, 1 Burr. 452; Jones v. Nellis,
41 Ill. 482; Shipley v. Carroll, 45 Ill.
285; Clark v. Johnson. 54 Ill. 296;
Loomis v. Ruck, 56 N. Y. 462; Clark
v. Pease, Supra.
§ 624.] INEGOTIABLE INSTPUMENTS. 931.
Third. This freedom of circulation from hand to hand, unin-
cumbered with the equities or claims which exist between the:
original parties or subsequent holders."
Favoring Presumptions.— Besides these positive qualities
there are other advantages which are given the holder of a bill
Or note.
The bill is presumed to have been given on a sufficient con-
sideration.” The holder is presumed to be a taker before ma-
turity without notice and for value.”
These presumptions are rebuttable and yield to proof of the
actual facts.” Q
On proof of any infirmity of title, or want of consideration
or fraud in the inception, these presumptions wanish and the
holder is obliged to show himself a bona fide holder” in usual
course." This is because it is easily within his power to ex-
plain."
Wrongful Wegotiation.—It is the duty of a holder of nego-
tiable paper to credit on the back of it payments as they are
made, and to deliver the note to the person paying, on full pay-
ment; and one who neglects to credit all sums which are re-
garded in law as part payment and negotiates the note to a
bona fide holder, thus cutting off defenses, is liable to an action
as for money had to the use of the maker.”
A bona fide holder is one who takes the bill for a valid con-
sideration” in the usual course of business, either without notice
1 Thatcher v. W. River Bank, 19 71 Dan. Neg. Int., pp. 142, 662.
Mich. 196; Benj. Chalm. Dig., art. 134;
Favorite v. Lord, 35 Ill. 149; Clark v.
Pease, 41 N. H. 414.
*This is not true as to non-negoti-
able note not expressing value re-
ceived. Bristol v. Warner, 19 Conn. 7.
3 Benj. Chalm. Dig., art.97; Commis-
sioners v. Clark, 94 U. S. 278; Charles
v. Rennick, 54 Ill. App. 121.
4 Id.
5 Vosberg v. Diefendorf, 119 N. Y.
357; Gibberson v. Jolly, 120 Ind. 301;
Tilden v. Barnard, 43 Mich. 376.
* Kellogg v. Curtiss, 69 Me, 212;
Sperry v. Spaulding, 45 Cal. 549;
Wright v. Brosseau, 73 Ill. 381.
8 Nashville Lumber Co. v. Fourth
Nat. Bank, 94 Tenn. 374; 27 L. R. A.
519. Usury paid is considered as
part payment. On the debt, and is not
regarded as voluntarily paid till the
whole transaction is closed. Payne
v. Newcomb, 100 Ill. 612; White v.
Franklin Bank, 22 Pick. 181. And if
the holder transfers the note and
cuts off the defense of usury, an ac-
tion will lie to recover it. Lacy v.
Brown, 67 Ind. 478; Carter v. Moses,
39 Ill. 542; Wood v. Lake, 13 Wis. 84.
9 Pre-existing debt. Herman v.
Gunter, 83 Tex. 66; 29 Am. St. Rep.
632.
932 THINGS. [$ 624.
of any infirmity in the bill itself or the title of his immediate
transferrer; * or — -
One (not a party to any fraud connected with the note) re-
ceiving it from a bona fide holder.”
A holder in due course is one who takes before maturity and
in the ordinary course of business.” The maturing of the note
divests it of the second and third peculiar advantages of nego-
tiability above spoken of. The bill is still negotiable, but is
subject to all equities.”
Défenses to Actions on Bills.-It is evident, therefore, that
one resisting the enforcement of a bill or note must take dif-
ferent courses, according to the character in which the holder
SU162S.
Between original parties the Ordinary defenses, denying capac-
ity to execute,” delivery, execution, consideration, or showing
payment, or establishing a set-off or recoupment, are always
open," and it is always allowable to show by parol or evidence
that the paper was but a part of another transaction, or not
intended as a note."
Between remote parties the nature of the defense allowable
is controlled largely by the time and manner of taking the
bill.
If taken before maturity, the advantage is all with the holder,
and the defendant can only rely on showing the paper void
1 Benj. Chalm. Dig., art. 85; 1 Dan.
Neg. Inst., §§ 769a, 789.
Negotiable Paper— Notice of In-
firmity.— The pendency of a suit
relating to the validity of negotiable
paper not yet due is not constructive
notice to subsequent holders thereof
before maturity, and this general
rule cannot be changed by state laws
or decisions so as to affect the rights
of persons not residing and not being
within the state. Enfield v. Jordan,
119 U. S. 680. Mere negligence, even
though it be gross, in not knowing
the facts and circumstances sur-
rounding the making will not defeat
his title; his conduct must be such
as to show bad faith and amount to
fraud. Rublee v. Davis, 33 Neb. 779;
Shreeves v. Allen, 79 Ill. 553; Murray
v. Lardner, 2 Wall, 120.
* He need not give value, and no-
tice does not affect him. Chalm.,
art. 87; Commissioners v. Clark, 94
TJ. S. 278.
3 Benj. Chalm. Dig, art. 86.
41 Dan. Neg. Inst., § 788.
* In case of corporation securities
the defect must extend to complete
incapacity, not mere irregularity, un-
less the irregularity is known to the
holder. Louisville, etc. Ry. Co. v.
T. T. Co., 174 U. S. 552.
61 Dan. Neg. Inst., § 769; Marsh v.
Chown, 104 Iowa, 561.
7 Id.
§ 624.] NEGOTIABLE INSTRUMENTS. 933
as between original parties, or destroying the character of the
plaintiff as a bona fide holder, and then introducing the equity.”
Any defense of fraud, or fraud and circumvention, to be effect-
ive, must show the presence of due care on the part of the
defendant.
If taken after naturity or after dishonor it is open to more
defenses, but the holder still has a more favorable position than
an original party. The bill is subject to the enforcement of
what are termed equities between the original parties. These
do not include all defenses which could be made if the bill
were held by the payee, but extend only to those matters which
are naturally the incidents of, and in some way usually con-
nected with, the issuing of its paper.
Consideration is essential to a bill, except in case of ac-
commodation paper;" hence the want or failure of it is an
equity.”
1 Proof of a knowledge of equities
short of circumvention or illegality
will not have this effect. Commis-
sioners v. Clark, 94 U. S. 285. A plea
of fraud and circumvention neces-
sarily involves the question of due
care on the part of the defendant in
executing the instrument. Teach v.
Nichols, 55 Ill. 273; Butler v. Carnes,
37 Wis. 63; Swannell v. Watson, 71
Ill. 456. A party about to take an
assignment of a promissory note
from any one is under no obligation
to call upon the maker and make
inquiry before purchasing it, even
though he lives in the same place
with the maker. Murray v. Beck-
with, 81 Ill. 43; Hovey v. Eppinger,
34 Mich. 39; Dan. Neg. Inst., § 775;
GOOdman v. Simonds, 20 How. 343;
Comstock v. Hannah, 76 Ill. 530. If
the defendant was guilty of any de-
gree of negligence in signing the
note, he cannot set up fraud or cir-
cumvention against a bona fide pur-
chaser for value. Chapman v. Rose,
56 N. Y. 137, 141: Leach v. Nichols,
55 Ill. 273–277; De Camp v. Hamma,
29 Ohio St. 470; Butler v. Carnes, 37
Wis, 63. The burden of proving
fraud is upon the defendant, and
also that he acted without negli-
gence. Ross v. Doland, 29 Ohio St.
473.
* Fraud, duress, illegality, payment,
and the like, will not do. 1 Dan.
Neg. Inst., § 769a, Illegality will not
render a note void unless by an ex-
press statutory declaration. Town
of E. v. Kohn, 84 Ill. 293; Clark v.
Pease, 41 N. H. 414. -
8 Accommodation paper is a com-
mon form of lending credit. It is
a negotiable paper, but without con-
sideration. And want of considera-
tion, even if known, is no defense;
but a diversion of the use from that
agreed upon, if known to the taker,
may defeat a recovery. Miller v.
Larned, 103 Ill. 562; Monument Nat.
Bank v. Globe Works, 101 Mass. 151.
There is a distinction between such
a note and a mortgage given to Se-
cure it; the mortgage not being ne-
gotiable is open to all defenses and
equities. Jones on Mort., § 838.
4 Benj. Chalm. Dig., art. 134, Ex-
planation 3; 2 Dan. Neg. Inst., § 401;
Favorite v. Lord, 35 Ill. 149.
934. THINGS. [$ 624.
Payment is expected, but, it being the usual course of busi-
ness to take back the note, notice of payment must be shown.
A set-off being an independent matter is not sufficiently con-
nected with the note to be an equity; and where an executory
contract is the consideration, the failure to perform is not an
equity, and is only available by showing that the holder took
with notice of the breach."
An independent covenant is like an independent contract,
and in such a case a breach Ought not on principle to constitute
an equity.”
Species of Wegotiable Paper.—There are, properly speaking,
but three, viz.: bills of exchange, promissory notes and checks,”
although instruments with other names have attained such
prominence and extended use as to almost constitute separate
species, namely, bonds and stocks, bank notes, city warrants, etc.,
but these are only other forms of promises to pay. Because
issued by public or private corporations, and frequently sold in
open market, they have received these special designations,—
the names do not change their essential characteristics. They
are not distinguishable from other promises to pay money to:
a specified person or bearer or order.”
A bill of eachange is an absolute unconditional order by one
person on another for the payment of a certain sum of money
to a third person.”
There are in form three parties to a bill of exchange: the
drawer, or maker; the drawee, or person requested to pay, who
if he honors the draft and accepts it is called the acceptor; and
the person in whose favor the draft is drawn, called the payee.
Only two are necessary, for by custom it is allowable to draw.
1 Gage v. Lewis, 68 Ill. 604, 617;
Willetts v. Burgess, 34 Ill. 494; Davis
v. McCready, 17 N. Y. 230. But no-
tice of a breach may be notice of an
equity. Thatcher v. The W. River
Bank, 19 Mich. 196; Siegel, C. & Co.
v. Chi. Tr. & Sav. Bank, 131 Ill. 569;
Rublee v. Davis, 33 Neb. 779; 29 Am.
St. Rep. 509.
2 Ante, p. 933, note 3. But see John-
son v. Bank, 24 Ill. App. 353.
* As to checks, see infra, p. 948.
4 Louisville, etc. Ry. Co. v. L. T. Co.,
174 U. S. 552; Gelpcke v. Dubuque, 1.
Wall. 175 (city bonds and coupons).
These anomalous negotiable instru-
ments are described in the notes to:
Miller v. Race, in Smith’s Leading
Cases, any edition. Delafield v. Illi-
nois, 2 Hill, 159, cited in Bank v. N. Y.
& N. H. R. R. Co., 13 N. Y. 625; Jones.
v. Nellis, 41 Ill. 482 (involving gov-
ernment bonds); Meyer v. Richards,
163 U. S. 385.
5 Chitty on Bills, 2; Turner v. P. &
S. R. R. Co., 95 Ill. 144,
§ 624.] NEGOTIABLE INSTRUMENTS. 935,
a bill payable to oneself, or even to a fictitious person, and by
indorsement give the bill all the qualities of a bill."
An indorser is he who transfers a bill by writing his name
across the back.
The indorsee is he who takes it.
Holder designates the present owner.
Inland and Foreign Bills.--It was allowable originally only
to use bills of exchange between different mercantile coun-
tries. These were called foreign bills; but in time the same
device was allowed between inland merchants, and hence the
designation foreign and inland bills; and in the United States.
the different states are deemed for this purpose foreign to each
Other.”
They are executed in sets of three, one being kept by the
drawer, one sent forward to the drawee, and one being deliv-
ered to the payee.
A promissory note is a direct transaction between two per-
sons, and in the definition of this instrument there are eight
essential features.
A negotiable note is a written” promise" by one person to
pay absolutely and at all events” a sum certain" in current
1 Benj. Chalm. Dig. 3.
*The principal distinction between
inland and foreign bills of exchange
is that no protest of the former is re-
Quired to hold assignors or other par-
ties secondarily liable. Daniel, Neg.
Inst., §§ 7,926; Tiedeman, Com. Paper,
§ 3; Smith v. Curlee, 59 Ill., 221.
* A note in pencil is good. Reed v.
Roark, 14 Tex. 329; 65 Am. Dec. 127.
As to meaning of a writing, see Hen-
shaw v. Foster, 9 Pick. 312. Need not
be on paper or parchment, though
One or the other is usual. Any sub-
stance that will receive and retain
the characters will answer.
4 The word “promise” need not be
used. Hibbard v. Holloway, 13 Ill.
App. 101. But there must be an ex-
press undertaking as distinguished
from an implied promise. Gay v.
Rooke, 151 Mass. 115; 21 Am. St. Rep.
434.
5 A promise in the alternative will
not do. Smalley v. Edey, 15 Ill. 324.
The instrument cannot depend on
any contingency. Husband v. Ep-
ling, 81 Ill. 172. Orders payable out
of particular funds are not. Worden
v. Dodge, 4 Den. 159.
6 It is not sufficient that the
amount can be made certain in the
future (58 Mo. 24), unless it depends.
merely on calculation. Knight v.
Jones, 21 Mich. 161. Marginal figures
are sufficient to render the amount
certain though the amount is left
blank in the body. Witty v. Mich.
Mut. Ins. Co., 123 Ind. 411; 8 L. R. A.
365. But see Hollen v. Davis, 59 Iowa,
444; 44 Am. Rep. 688. Words “with
exchange ’” have been held to render
the amount uncertain, and SO to de-
stroy negotiability. Culbertson v.
Nelson, 93 Iowa, 187; 27 L. R. A. 222.
Provision adding attorney's fees if
936
[$ 624.
THINGS.
money" at a definite time” to a person named, or his order, or
to bearer.”
There are two essential parties: the person who signs the
note and makes the promise, called the maker, and the person
to whom the promise is made, called the payee; but as in bills
of exchange one may make a note payable to himself, or to a
fictitious person, and by indorsement and delivery set it afloat
as a negotiable promissory note.*
Bills of lading are sometimes classed with negotiable paper,
but they are not of the same species as bills and notes.”
They
sued upon destroys negotiability.
Bleckley Co. v. Alewine, 48 S. C. 308;
37 L. R. A. 86. Contra, Oppenheimer
v. Farmers’ & Mer. Bank, 97 Tenn.
19; 33 L. R. A. 767.
1 That is, coin and paper at par
value. Block v. Ward, 27 Mich. 191.
Whatever is current as money. Bull
v. Bank of Kasson, 123 U. S. 105. By
statute in several states, written
promises to pay in specified articles
other than money are made negoti-
able. Bilderback v. Burlingame, 27
Ill. 338. See Culbertson v. Nelson, 93
Towa, 187; 27 L. R. A. 222. Note pay-
able in “Canada money” is negoti-
able. Black v. Ward, 27 Mich. 191.
Contra, Thompson v. Sloan, 23Wend.
71. -
2 A note payable “on or before ” a
certain date, held in Some cases to
be non-negotiable for uncertainty.
Stutts v. Silva, 119 Mass. 39. The
weight of authority, however, is con-
trary. First Nat. Bank v. Skeen, 101
Mo. 683; 11 L. R. A. 748. A note
payable a specified time after death
of maker is negotiable. Crider v.
Shelby, 95 Fed. Rep. 212. But other-
wise if payable at a time that may
never arrive, as at majority. Kelley
v. Hemmingway, 13 Ill. 604. Place
of payment need not be designated
at common law. But in several
states, by statute, all the character-
istics of negotiable paper attach
Only to such notes as are made pay-
able at a bank in the state. Clark
v. Carey, 63 Ind. 105.
*Ante, pp. 928, 929, and notes.
*See Gordon v. Anderson, 83 Iowa,
224; 32 Am. St. Rep. 302. Alterna-
tive will not do. Musselman v.
Oakes, 19 Ill. 81. If payee is ascer-
tainable it will do. Adams v. King,
16 Ill. 169. Note to two, see Ryhiner
v. Feickert, 92 Ill. 305. Fictitious
payee indorsed equivalent to bearer.
Armstrong v. National Bank, 46 Ohio
St. 512; 15 Am. St. Rep. 655. If two
of Same name, the real payee may be
shown by parol. Hall v. Tufts, 18
Pick. 455. Addition of the word
“trustee.” Fox v. Citizens’ Bank &
T. Co. (Tenn.), 35 L. R. A. 678 (1897).
5 “While bills of lading are not ne-
gotiable in the sense applicable to
commercial paper, they are very com-
monly transferred as security for
loans and discounts, and carry with
them the ownership, either general
or special, of the property which they
describe. . . . The carrier issuing
them has no right to believe, and
never does believe, that their office
and effect is limited to the person to
whom they are first and directly is-
sued. . . . If he desires to limit
his responsibility to a delivery to the
named consignee alone, he must
stamp his bills as ‘non-negotiable.’”
Bank of Batavia v. New York, L. E.
& W. R. R. Co.,106 N.Y. 197. In Landa,
v. Lattin (Tex. Civ. App.), 45 S. W.
§ 624.] NEGOTIABLE INSTRUMENTS. 937
do not promise money, nor is their negotiability of the same
quality. - ty
A bill of lading is usually drawn promising to deliver to the
consignee's order, or bearer, and may be transferred from hand
to hand, passing the title of the property to the bearer;' but
this is essentially different from transferring the promise of A.,
made to B., to C., D. or E.
The property in the chattel, evidenced by the bill, changes
Ownership, but a chose in action is not thereby transferred.”
THE OBLIGATION OF PARTIES TO BILLS.*— Presumption from
Manner of Signing.—If one's name appears on a bill or note
it is reasonable to presume that in signing he intended to incur
liability thereby.”
Rep. 48, it was held that a bank which
Cashed a draft drawn by a consignor
On a consignee of wheat, with a bill
of lading attached, and collected the
draft before the consignee had op-
portunity to inspect the wheat, was
liable for a breach of warranty as to
the quality of the wheat. The bank
was held to be a purchaser of the
wheat, and therefore a successor to
the liabilities as well as the rights of
the consignor.
1 Lord Holt settled the law of bills
of lading in this respect in Evans v.
Marlett, infra. Lord Mansfied sim-
ply acquiesced. Buller, J., says: “The
Gustom of merchants has established
that the delivery of a bill of lading
transfers the whole property. Evans
v. Marlett, 1 Ld. Raym, 271; Wright
v. Campbell, 4 Burr. 2046 (by Mans-
field), and Caldwell v. Ball, 1 Term R.
205. Then it has been said that a bill
Of lading is not transferable like a
bill of exchange; but the custom of
Imerchants has made that transfer-
able which in its nature perhaps is
not so, and the cases above referred
to decide that point.” Ashhurst, J.,
indorses Buller's, J., argument say-
ing: “So it is like a bill of exchange,
in which case, as between the drawer
and the payee, the consideration may
be gone into, yet it cannot between
the drawer and an indorsee; and the
reason is, because it would be ena-
bling either of the original parties to
assist in a fraud. The rule is founded
purely on principles of law, and not
On the custom of merchants. The
Custom of merchants only establishes
that such an instrument may be in-
dorsed, but the effect of that indorse-
ment is a question of law.” Lickbar-
row v. Mason, 3 Term R. 63; Smith’s
Ld. Cases.
2 Bank v. New York, L. E. & W.
R. R. Co., 106 N. Y. 195. A valuable
note to this case will be found in
Parson’s edition New York Reports.
Freedlander v. Texas & Pac. Ry. Co.,
130 U. S. 416; Chandler v. Sprague, 5
Met. 306; 38 Am. Dec. 410. See note
to Miller v. Race, 1 Sm. Ld. Cas, (9th
ed., Edson), 785.
3It is of course determined by the
lea, loci, unless there is evidence of
intent that it shall be performed else-
where. Phipps v. Harding, 70 Fed.
Rep. 471. -
4 One signing a note becomes a
principal unless he clearly indicate
in the paper that the promise is not
his (Mechanics’ Bank v. Bank of C., 5
Wheat. 326); and the mere affixing
of a description which may as well
be intended to identify him will not
do. Little v. Bailey, 87 Ill. 239; Hypes
938
[$ 624.
THINGS.
Custom has sanctioned modes of signing commercial paper
which furnish a presumption as to the liability intended to be
assumed by signing."
In many cases this presumption may be explained by parol
evidence.”
When the payee or holder indorses a note or bill the law
presumes the contract of indorsement.
“There is in legal
contemplation written over his signature the extent and nature
of his undertaking, which cannot be varied by parol.” "
The maker's promise is that he will pay it at maturity.
The drawer engages that it shall be accepted by the drawee
if duly presented, and paid according to its torms,” and that if
it is not he will indemnify the holder, provided due protest (if
required) and notice of dishonor are given him.”
The drawee is not a party to the bill until acceptance, when
he is called the acceptor.
Unless he has contracted so to do,"
he is under no obligation to accept the bill, though he owes or
has funds of the drawer.”
The acceptor promises absolutely to pay the bill in money at
maturity.”
Indorsers Are of Several A&nds — The Holder.— A party as
payee or indorsee of a bill or note who indorses his name
thereto is properly called the indorser."
An indorser proper of a bill or note makes the same contract
v. Griffen, 89 Ill. 135. In Leadbitter
v. Farrow, 5 M. & S. 345, Lord Ellen-
borough, C. J., says: “Is it not an
universal rule that a man who puts
his name to a bill of exchange thereby
makes himself personally liable, un-
less he states upon the face of the
bill that he subscribes it for another,
or by procuration of another, which
are words of exclusion ? Unless he
says plainly, ‘I am the mere scribe,’
he becomes liable.” Village of Ca-
hokia v. Rautenberg, 88 Ill. 219; Pow-
ers v. Briggs, 79 Ill. 495.
1 Tiedeman, Com. Paper, § 120.
2 Lennon v. Goodspeed, 89 Ill. 438.
8 Chalm. Dig., art. 56 and notes;
Worden v. Salter, 90 Ill. 165; Aymer
v. Sheldon, 12 Wend. 439.
4 Benj. Chalm. Dig., art. 286.
5 Tiedeman, Com. Paper, $ 507.
6 Benj. Chalm. Dig. 215; Sherry v.
Robinson, 1 Day, 11. See Phipps v.
Harding, 70 Fed. Rep. 468. This im-
plied engagement may be changed
by statute. Id.
7 Chitty on Bills, 281; Tiernan v.
Jackson, 5 Pet. 580.
8 Crawford’s Neg. Inst. 93–96; Huff-
cut's Neg. Inst. 613. A promise by
a party to pay a draft is equivalent
to an acceptance. National Bank v.
Diefendorf, 90 Ill. 396.
9 Benj. Chalm. Dig.211: Crawford's
Neg. Inst. 92 and notes; Chitty on
Bills, 204.
10 Benj. Chalm. Dig. 111.
§ 624.] INEGOTIABLE INSTRUMENTS. 939
that the drawer of a bill of exchange does." He also warrants
the validity of the bill, the genuineness of previous signatures,
and his title to it.” -
The indorser of a non-negotiable note or bill, as between
himself and the immediate parties to the indorsement, incurs
the same liability as if the bill or note was negotiable,” but as to
remote parties his liabilities are either none at all, or qualified.”
It has been held that he guarantied the payment only.
While a bill of exchange payable to bearer may be transferred
by mere delivery if it is indorsed, the indorser incurs the usual
liability of indorser.” -
Stranger Indorser.—The name of a stranger to the bill or
note often appears upon it, and we commonly call such an in-
dorser, which is technically incorrect, because under some cir-
cumstances the party does not incur the same liability as an
indorser."
Where a stranger indorses an ordinary note or bill, the ex-
tent of his liability differs according to when he signed it.
1st. Whether at the time it was executed and before deliv-
ery to the payee.
2d. After delivery to the payee, but before negotiation.
3d. After the payee has indorsed it.
Upon these questions the doctrines of the courts of the differ-
ent states are by no means harmonious, and there is conflict of
authority found in the same state in several instances.
In Illinois the indorsement of a bill or note in blank by a
stranger to a note raises a presumption of liability as guarantor
of payment if made before delivery of the note."
1 Chitty on Bills, 227; Slocum v.
Pomeroy, 6 Cranch, 222; Lenox v.
Prout, 3 Wheat. 520; Hill v. Lewis, 1
Salk. 132; Tiedeman on Com. Paper,
Sec. 256.
2 Benj. Chalm. Dig., art. 219; Onon-
daga Co. Sav. Bank v. United States,
64 Fed. Rep. 703; Rhodes v. Jenkins, 18
Colo. 49; 36 Am. Rep. St. 263. The most
valuable case discussing the war-
ranties of the transferrer is Meyers
v. Richards, 163 U. S. 385. It was a
case of a negotiation by delivery of
invalid municipal bonds of the state
of Louisiana. Hence the civil-law
obligation was involved and was con-
trasted by the learned judge with
the common law, and the two held
to substantially agree.
3 Story, 128.
4 Chitty on Bills, 226.
5 Tiedeman, Com. Paper, secs. 257a,
259; Johnson v. Mitchell, 50 Tex. 212;
Dale v. Weeks, 4 Mass. 451. See Mey-
ers v. Richards, supra.
6 Hendrie v. Kinnear, 84 Hun, 141.
7 Kingsland v. Koeppe, 137 Ill. 344:
Fish v. Glover, 154 Ill. 86. See Good
v. Martin, 95 U. S. 90.
940
[$ 624.
THING.S.
This presumption may be rebutted and the true contract es-
tablished by parol evidence."
In such cases no other consideration than that for which the
note is given need be proved.
In some states the party is held as joint maker,” in others as
surety, while still others hold that the law implies no contract
from that mode of signing.”
If a stranger indorses a note or bill after delivery to the payee,
but before indorsement by him, the weight of authority is that
prima facie he intends the contract of guaranty, and a new
consideration must be shown.”
When a stranger indorses a bill or note payable to the maker
or his order, he prima facie incurs the liability of second in-
dorser.”
An indorsement without date is presumed to be at the date
of the making of the note.
When the holder of a note made payable to bearer or when
the note becomes so by a blank indorsement negotiates it by
delivery, he incurs no liability on the bill itself."
But he may
become liable on the consideration for the transfer, as he does
enter into some contract in regard thereto."
Where one is held as joint maker his rights and duties are
of course those of maker.
The liability of guarantors has been pointed out.”
If guarantor of collection, the primary debtor must be pur-
sued till suit is unavailing.”
If contract is that of indorser, due protest and notice must
be given.
1 Stowell v. Raymond, 83 Ill. 120.
2 Sylvester Bleckley Co. v. Alewine,
48 S. C. 308.
3. On this conflict, see Fitzhugh v.
Love's Ex’rs, 6 Call, 5; 3 Am. Dec.
569; Chaddock v. Vanner, 35 N. J. L.
517.
4 Chitty on Bills, 599; Fitzhugh v.
Tove's Ex’rs, supra; Chaddock v.
Vanner, supra. There is a dictum by
Walker, C. J., in the case of White v.
Weaver, 41 Ill. 411, that seems to say
that, by thus signing, the liability as
second indorser is incurred. But in
this case the indorsement of the payer
had been on the note and erased.
* Brandt on Surety, Sec. 148; Kayser
v. Hall, 85 Ill. 511.
6 Benj. Chalm. Dig. 223 and notes.
7Id.; Meyers v. Richards, 163 U. S.
385. The holder of a note indorsed
in blank has a right to write over
the signature any contract consistent
with such an instrument and in ac-
cordance with the agreement of the
parties. Cushman v. Dement, 3 Scam.
444; White v. Weaver, 41 Ill. 412–13.
8 Amte, p. 923.
9 Story, sec. 478.
§ 624.] NEGOTIABLE INSTRUMENTS. 941,
If the guaranty is upon a negotiable paper and general, it
runs with it; that is, the guaranty is negotiable; otherwise if
in separate writing directed to a particular person."
INLAND AND FOREIGN BILLS.— Presentation for Acceptance.—
The object of presentation is to fix the liability of parties, which
is conditional on due presentation, notice, diligence, etc. The
holder of a bill of exchange payable in any terms has the right
to present it for acceptance even on the day it falls due.” An
inland bill does not require presentation; a foreign one does.
Bills of exchange payable at sight, or within a specified time
after sight or after demand, must, and those on demand or at a
certain time after date need not, be presented for acceptance.”
The holder of a bill requiring presentation for acceptance
must, within a reasonable time, negotiate it or send it forward
for acceptance. If this is not done and loss follows in conse-
quence, the holder loses his right of recourse against the drawer
and prior holder."
Presentation for acceptance must be to the drawee or an
agent authorized to accept.”
If the bill is drawn on two or more persons, presentment to
one is probably sufficient."
When the drawer draws without provision for acceptance, or
when the drawee is a fictitious person, no presentment need be
made."
The bill must be presented during business hours, and these,
unless the bill be drawn upon a bank, range through the whole
day down to bed-time.”
Delivery for Acceptance.—The person who presents a bill
must deliver it up to the drawee if requested, and the drawee
may keep it twenty-four hours to decide whether he can ac-
cept it.” -
If he refuses to return it or destroys it, he is liable the same
1 Webster v. Cobb, 17 Ill. 459. A 4 Benj. Chalm. Dig. 150, 153; Monte-
guarantor is liable only to persons to litus v. Charles, 76 Ill. 303.
whom he made the guaranty. Sec- 5 Benj. Chalm. Dig. 153.
Ond Nat. Bank v. Diefendorf, 90 Ill. 6 Id. 154,
396. 7 Id. 155; Lawrence v. Schmidt, 35
* Benj. Chalm. Dig. 153; Plato v. Ill. 440.
Reynolds, 27 N. Y. 586. 8 Skelton v. Dustin, 92 Ill. 49.
* Benj. Chalm. Dig, 149. 9 Or such other period as the holder
may allow.
‘942 - THING.S. - [$ 624.
as if he had accepted it," and the party has also the right to
treat it as dishonored, and probably he has a double remedy —
to notify the antecedent parties, and also proceed against the
drawee when due.” (Quare.)
The neglect of the holder to use due diligence in present-
ment for acceptance or payment, and to give notice of non-
acceptance and dishonor, if loss is occasioned by the laches,
deprives him of recourse against the prior holders or the drawer
upon the bill, and also discharges them from liability upon the
debt for which the bill is drawn.”
JPresentment is eacused—
(1) When the drawee is discovered to be a fictitious person, or
when by the exercise of reasonable diligence presentation can-
not be effected. -
(2) When the drawer is not in funds and has no reasonable
expectation that the bill will be accepted.
(3) When no place of payment is fixed and acceptor or drawee
absconds.
(4) Where reasonable diligence fails to effect presentation, or
by a waiver of presentation.*
Where circumstances over which the person whose duty it is
to present the note has no control preclude, without laches on
his part, presentation, delay in making it is excused. Preva-
lence of a contagious disease, wars, a delay in the mails, etc.,
also excuse delay. But when the cause of delay is removed the
note must be presented within a reasonable time.”
Acceptance of a bill is the promise of the drawee to pay it
when due.
The drawee must guard against forgery or the alteration of
the bill, for in that case he is liable to a subsequent innocent
purchaser."
The holder has the right to insist upon a general, i. e., an
unqualified, acceptance of the bill, and it is not safe for him to
take less."
A qualified acceptance is one that makes payment dependent
1 Matteson v. Moulton, 79 N. Y. 627. 6 Yocum v. Smith, 63 Ill. 321; Mas-
2 Smith v. Miller, 43 N. Y. 171. ter v. Miller, 4 Term R. 320; Sm. Ld.
* Robinson v. Ames, 20 Johns. 146. Cas.
4 Benj. Chalm. Dig. 166, 167. 7 Benj. Chalm, Dig. 52, 53.
5 Id. 169; Story on Notes, § 260.
§ 624.] NEGOTIABILE INSTRUMENTS. 943
on a condition, or is partial as to the amount, or restricts the
payment to a particular place, or is qualified as to time, or
where it is drawn upon several jointly, and only part accept."
The acceptance may be in writing either on the bill or on a
separate paper,” or oral, or may be implied from acts.”
A written or perhaps verbal promise to accept a bill, made
within a reasonable time before or after the existence of the bill,
designating the bill, will, if acted on, bind as an acceptance."
This may also be done by telegram.” But the rule that an ac-
ceptance by parol promise to accept before the bill exists may
be made is not by any means universal.
And this rule is not applicable to bills payable at or after
sight, since the time such bills are to run must be determined
by presentation for acceptance.
A letter of credit is a collateral acceptance by which the
writer authorizes the party addressed to draw on him.”
There are bills which are held accepted by the act of draw-
ing them, as bills drawn by a partner upon his firm, or by one
officer upon another officer of the same firm or corporation."
These are in substance promissory notes.
JDating Acceptance.—An acceptance need not be dated, but
the acceptance of a bill payable after sight should be dated to
show where it is due, though the date of acceptance may be
proved.” - -
An acceptance without date is prima facie an acceptance be-
fore due.”
Acceptance for Honor.—With the holder's consent after dis-
honor or protest, or for better security after acceptance, a
stranger to it, for the honor of any person liable on it, may ac-
1 See Brown v. Jones, 113 Ind. 46;
3 Am. St. Rep. 623, which held that
designation of place of payment is
allowable.
2 Olcott v. Tioga R. R. Co., 27 N. Y.
586. Acceptance may be by tele-
gram. Brinkman v. Hunter, 73 Mo.
179; Molson Bank v. Howard, 40 N. Y.
15; Savings Bank v. Richards, 109
Mass. 414.
3 Sturgis v. Fourth Nat. Bank of
Chicago, 75 Ill. 597.
4 Nelson v. First Nat, Bank of Chi-
cago, 48 Ill. 37; Bank of Michigan v.
Ely, 17 Wend. 508; 2. L. R. A. 709. As
to Oral promise, see Allen v. Leavens,
26 Oreg. 164; 26 L. R. A. 620.
5 Johnson v. Clark, 39 N. Y. 216;
Lindley v. First Nat. Bank, 76 Iowa,
629; 2 L. R. A. 709; supra, note 2.
6 Robins v. Bingham, 4 Johns. 476.
7 Or where a letter of credit author-
izes the drawing of a bill of exchange.
Bissell v. Lewis, 4 Mich. 450.
8 Tiedeman, Com. Paper, 220.
9Id.; Begbie v. Levi, 1 C. & J. 180.
60
944 THINGS. [$ 624.
cept. It is also called acceptance supra protest, but it is optional
with the holder whether he will allow such an acceptance or
not." -
A bill may be accepted after it is overdue or after it has been
dishonored by refusal to accept, or dishonored by non-payment
and protest.” - .
Protest and Wotice.—Where the holder of a note presents it
for acceptance and acceptance is refused, whether it was nec-
essary to present the bill for acceptance or not, the holder
must give the drawee notice of the dishonor, unless the drawer
did not draw on funds and had no reason to expect the bill
would be accepted; or where the drawer and drawee are the
same persons, or same in interest;" or the drawee is a fictitious
person or has not capacity to contract; or when the drawer
has taken an assignment of all the goods of the drawee; * and
some courts hold when the drawer has taken only part of the
goods as security, if the security is ample.”
When the holder desires to hold an indorser he must give
notice, unless the indorser is the principal debtor, and has no
reason to believe it will be honored; or when he is the person
to whom the bill is presented for payment; or when the drawer
is a fictitious person and the indorser knew it; or when the
indorser has received an assignment of all the goods of the
drawee." -
In all cases where the exercise of reasonable diligence to
give notice has failed, notice is excused."
Where a creditor takes a bill from his debtor drawn upon.
a third person, this is regarded as prima facie a payment of
the debt, and if the bill is dishonored he must use such dili-
gence as will charge the parties to it, or the debt will be dis-
charged.”
1. It must be again presented for
payment, and again protested if not
paid. Schofield v. Bayard, 3 Wend.
488.
2Grant v. Shaw, 16 Mass. 344; Stock-
well v. Bramble, 3 Ind. 428.
3 Rosson v. Carroll, 90 Tenn. 90; 12
L. R. A. 727; Benj. Chalm. Dig. 195,
196.
4 Benj. Chalm. Dig., art. 200, Ex. 4
and 5 and note.
5 Id.
6 No funds does not excuse notice
to indorser. 3 Kent, *110; Chitty on
Bills, *328; Welch v. Taylor Mfg. Co.,
82 Ill. 579; Bank v. Hughes, 17 Wend.
94.
7 Benj. Chalm. Dig., p. 198.
8 Dayton v. Trull, 23 Wend. 345–
347.
§ 624.] NEGOTIABLE INSTRUMENTS. 945.
When a foreign bill of exchange was dishonored it was nec-
essary at common law, and still is, in order to fix the liability
of the parties, except acceptor, to protest it before a notary
public, and give all the parties sought to be held on the bill
due notice of the dishonor and protest." The certificate of
the notary is prima facie evidence of the facts contained
therein.”
As to inland bills and promissory notes, no protest was needed
or allowed at common law, but only notice as above described;”
but protest is now allowed in many states by statute, and in
some it is required.”
Protest of a foreign bill is dispensed with by circumstances
which would dispense with notice of dishonor in case of an in-
land bill, and delay in protesting is excused by circumstances
that would excuse delay in notice.” -
Protest.— In the first instance presentation of whatever kind
may be made by the holder of the bill, but in order to perfect
the liability of persons secondarily liable a more formal pro-
ceeding must be taken, and this is known under the technical
name “protest,” which ordinarily must be made by a notary,
who takes the instrument, presents it, and then writes a formal
statement certifying that he did present the note, serving a
copy of this declaration upon all of the parties who are desired
to be held, and indicating that they will be expected to stand
good for exchange, re-exchange, damages, costs and interest.
The notice should be formally certain as to the note and the
parties, the time, amounts, and the like."
Unless by statute or local custom, the notary cannot dele-
gate any part of his duty; and it has been a question whether
protest might be made, where the services of a notary could not
be procured, by two respectable persons of the vicinity.
4 Such statutes are generally per-
missive, thus affording an additional
I See Johns on Notaries; Gale v.
Walsh, 5 Term R. 239; Union Bank
v. Hyde, 6 Wheat. 572; Benj. Chalm.
Dig., art. 181; Dennistoun v. Stew-
art, 17 How. 606. -
2Dickens v. Beal, 10 Pet. 582; How-
ard v. Bank of Carson, 50 Mā. 27.
3 Daniels' Neg. Inst., $927. Tiede-
man, Com. Paper, § 321.
remedy. Bailey v. Dozier, 6 How. 589.
5 Benj. Chalm, Dig, art. 182; Hull
v. Myers, 90 Ga. 674.
*As to the requirements, see Den-
nistoun v. Stewart, 17 How. 606;
Benj. Chalm. Dig, arts, 175, 176, 177,
178, and notes. -
946 THINGS. [$ 624.
The new negotiable instrument act provides that such pro-
test is good."
When formally made according to the lea, loci, the certificate
of protest is prima facie evidence of the material facts,” and
entitled to full faith and credit in the courts of all commercial
countries.”
JMaturity means the point of time when the payment must
be made, and the ascertainment of it is not so simple a matter
as might at first blush appear.
Custom has established rules of computation and practice.
Thus paper payable in a certain way is entitled to grace, i. e.,
several more than the nominal days fixed for payment. These
differ in different localities.*
Again, if the day of payment is dies non (no day) by law
and not a day of grace, the next is the absolute day of pay-
ment; but if it be a grace day, payment must be made on the
preceding day.”
Bills payable on demand and at sight must, to bind those
secondarily liable, be presented within a reasonable time."
Where time runs from a fixed day, that day is excluded, and
the next day is the first in the computation.
A month is a calendar month irrespective of the number of
days."
Presentation for payment, to fix secondary liability, differs
from presentment for acceptance in this: that presentment for
acceptance must be made to the person who is expected to ac-
cept the bill or his authorized agent, but the place of presenta-
tion is not material; while presentation for payment must be
made where the bill is payable, and is essential. It is not essen-
tial that it be presented to the person who is expected to pay,
unless he be at that place.”
1 See Burke v. McKay, 2 How. 66; $ 617; Bowen. v. Newell, 13 N. Y.
Benj. Chalm. Dig., art. 177, note; 290. .
Commonwealth Bank v. Varnum, 49 5 Benj. Chalm. Dig., art. 20; Reed
N. Y. 269; Par. Bills & Notes, p. 641, v. Wilson, 41 N. J. L. 39.
note a. 6 Seaver v. Lincoln, 21 Pick. 267.
2 Daken v. Grave, 48 N. H. 45; 7 Calendars different in different
"Towsley v. Sumrall, 2 Pet. 170. countries. Russia uses the Julian
3 Pierce v. Endseth, 106 U. S. 546. Calendar, while we use the Gregorian,
*Four days’ grace were allowed in and there is twelve days difference,
the District of Columbia. Renner v. 1 Dan. Neg. Inst., § 632.
Bank, 9 Wheat. 582; Dan. Neg. Inst., 8 Benj. Chalm. Dig, arts. 152–55,
$ 624.] NEGOTIABLE INSTRUMENTS. 947
A bill payable on demand must be presented within a rea-
sonable time. .
Presentation must be made in reasonable hours. If the per-
son is a trader, and the bill is payable at his place of business,
it should be presented there within or at the close of his busi-
ness hours; * but if made payable at a residence, then the bill
may be presented up to bed-time.” . *
The bill must be produced and presented by the holder or
Some one authorized to receive the money and give a receipt,
though a bill may be presented by mail.”
Where no place is fixed, then the bill should be presented
personally, either at the residence or place of business of the
party. The street is not a proper place, if objected to.”
When, by the exercise of reasonable diligence, a personal de-
mand cannot be made upon the drawee or acceptor, if the ac-
ceptor or maker has, at the maturity of the bill, a place of
business, presentation there at the proper hour is sufficient to
fix the liability of all parties.”
If he has removed to another country or state from where
he resided at the time of the execution of the bill, presentation
at his former residence or place of business is enough." One
is not bound to follow the maker or acceptor into a foreign
state; but if he resided in the foreign state at the time of mak-
n
º
ing the note or bill, or accepting it, then it must be presented
there.”
Where a bill is addressed to or accepted by two or more per-
sons, presentation must be made to all.”
160–67. It is the duty of the acceptor
to be at the place of payment. Bank
v. Smith, 11 Wheat. 171.
1 Clough v. Holden, 115 Mo. 336;
Sulzbacher v. Bank, 86 Tenn. 201: 6
Am. St. Rep. 828; Waring v. Betts, 90
Va. 46. But where, after the close
of a banking house, the holder actu-
ally obtained admittance to the
bank and presented it to the proper
persons, it was held a sufficient de-
mand to charge the indorser. Salt
Springs Nat. Bank v. Burton, 58 N. Y.
431.
2 Skelton v. Dustin, 92 Ill. 49.
8 Benj. Chalm. Dig. 161,162.
4 Benj. Chalm. Dig. 165.
5 Cox v. National Bank, 100 U. S.
704.
6 Benj. Chalm. Dig. 165; Foster v.
Joslin, 24 N. Y. 28.
7 Spies v. Gilmore, 1 N. Y. 328.
8T)emand must be made upon all
parties primarily liable. Gates v.
Beecher, 60 N. Y. 518, 523; Bank of
Red Oak v. Orvis, 40 Iowa, 332; Wil-
lis v. Green, 5 Hill, 232; 40 Am. Rep.
351; Arnold v. Dresser, 8 Allen, 435.
Unless a legal excuse can be shown
for not making such demand. Allen
v. Harrah, 30 Iowa, 363, 370; Tiede-
man, Com. Paper, sec. 313. And
948 THINGS. [$ 624.
Demand of Payment to Fia, Liability of Acceptor and Maker.
It is a general rule of law that where there is a debt or a duty
to pay without condition no demand of payment need be made."
But if the acceptor or maker alleges and proves that he was at
the place of payment and willing and able to pay, he will not
be charged with interest and costs, and if he has suffered dam-
age by non-presentation it may be that he will be allowed
damages.”
All that is necessary is to present it before the debt is out-
lawed, unless the delay has occasioned loss to the acceptor.”
Banker and Customer — Checks.-In order to understand the
nature of the third species of negotiable instruments above
spoken of, it is necessary to understand the nature of the busi-
ness of banking, because a check is always an order on a banker.
A check, properly speaking, is an order by a customer on a
banker to pay immediately upon demand a definite sum of
money.
The relation of banker and customer is a peculiar one, and not
easy to define except by describing the essential attributes.”
A banker is one with whom money is deposited, but even in
this case it is not the ordinary deposit of a bailee for safe-
keeping. The banker becomes the debtor, and the depositor
the creditor, and the money the property of the banker. ... '
Banks are either national banks, created by the United
States, or state banks, established under the authority of the
states, or private banks.”
The organization, powers and management of the first two
are regulated by statute, while the latter may or may not be
"where one of makers is dead, demand
must be made of the administrator.
Blake v. McMillen, 33 Iowa, 150. But
if joint makers sign as partners, de-
mand of one is sufficient. Gates v.
Beecher, 60 N. Y. 518, 522. Signing
in the usual manner of partners raises
presumption of partnership. Erwin
v. Downs, 15 N. Y. 575.
1Trust Co. v. Shufeldt, 78 Fed. Rep.
292. And this is true even if payable
at a particular place. Salt Springs
Bank v. Burton, supra.
2 Benj. Chalm. Dig. 171; Chitty, 365,
Anote.
3 Benj. Chalm. Dig. 172; New Hope,
etc. Co. v. Perry, 11 Ill. 467–471.
4 The nature of banks, their util-
ity, and the power of the national
government to create them, are fully
discussed by Judge Wilson in his ar-
gument on the Bank of North Amer-
ica, 1 Works, 549; by Hamilton in his
argument in favor of a national bank;
and by Marshall, C. J., in McCulloch
v. Maryland, 4 Wheat. 405.
5 See Legal Tender Cases, 110 U.S.,
at p. 445.
§ 624.] NEGOTIABLE INSTRUMENTs. 949
regulated by statutory provisions; in the absence of which the
law merchant, with certain local customs, will regulate the
manner of conducting the business.
JBanks of Issue.—Formerly private banks and state banks
were in the habit of issuing promises to pay the bearer of the
bill the sum indicated. They were called “bills of credit,” and
passed from hand to hand as money; but the national tax of
ten per cent. on these destroyed the practice.”
The obligation imposed by the law is that the banker will
honor the checks of his customer to the amount of his deposit,
and pay them on demand. .
It is said that the relation is one of trust and confidence, but
there is no other or further obligation on the banker than his
promise to repay. -
He is not obliged to hold money, and in practice does not.
He has unlimited discretion in reference to its investment, and
is not obliged, in the absence of statute, to keep on hand money
or security to pay his depositors; and no bank could exist for
any length of time whose deposits did not largely exceed the
capital of the concern. In the last analysis the banking busi-
ness rests on the confidence in the integrity and discretion of
the banker.” :
The frequent failure of bankers has led to statutes regulating
the business and fixing criminal penalties for the more common
forms of fraud practiced by bankers against customers.
It is a crime in many states, and a fraud everywhere, for a
banker, knowing himself to be insolvent, to accept deposits
from persons ignorant of the situation; and if a failure follows
quickly, under some circumstances equity will allow the owner
to reclaim the fund on the ground that the assignee or receiver
takes only the owner's equities.*
1The great discussion in Briscoe v.
Bank of Kentucky, 11 Pet. 257, gives
a history of bills of credit, and in-
volves the effect of the constitution
upon the power of state banks to issue
them.
*This gave rise to the case of Veazie
Bank v. Fenno, 8 Wall. 533. It was
remarked, and is significant, that the
bank was in no sense a fiscal agency
of the state. Id., p. 535.
* The tacit understanding is that a
banker is a discreet person, and will
lend his money on safe security for a
short time, being always liable to
repay all depositors on a short notice.
But in fact few bankers are ready to
meet all comers.
4 St. L. & S. F. Ry. Co. v. Johnson,
133 U. S. 566; Wasson v. Hawkins, 59
Fed. Rep. 233.
950 TEIIINGS. [$ 624.
The rights of the parties are determined in most cases by the
doctrines of equity in relation to tracing trust funds, which will
be mentioned in connection with equity proceedings."
Bankers as Collectors.--It is a very common practice to in-
dorse checks or drafts to the home bank “ for collection,” or
to draw drafts in favor of a bank for the purpose of consti-
tuting them collectors of debts. The relation is then that of
agency.” The funds collected are, however, generally credited
to the transmitting bank, and in cases of insolvency the ques-
tion arises as to the right to the fund, and here again arises
the question of tracing trust funds.”
A check is in form an inland bill of exchange, and may be
made payable in every respect as a bill of exchange, except
that it must be on demand. If payable in any other way than
on demand, it becomes a bill of exchange proper, and, as such,
entitled to days of grace, protest, notice, etc."
The deposit is generally withdrawn by means of a check,
and there is a diversity of opinion as to the effect of making
and issuing a check.
It is held in some jurisdictions that a check amounts to an
assignment pro tanto of the deposit at the time of presentation,”
and that privity between the payee and the bank is created by
presentation, and the payee may sue the bank for refusal to
pay." -
The English doctrine is contrary to this position, and holds
that there is no privity until acceptance. The weight of au-
thority in the United States supports the latter rule."
The relation being that of debtor and creditor, with the obli-
gation to honor and pay imposed by operation of law, it is diffi-
1 Infra.
2 Conn. Nat. Bank v. Armstrong,
39 Fed. Rep. 684; St. L. & S. F. Ry.
Co. v. Johnston, 133 U. S. 571; Drov-
ers’ Nat. Bank v. Provision Co., 117
Ill. 105; White v. National Bank, 102
TJ. S. 659.
3 Id.
4 Boston M. Bank v. Boston State
Bank, 77 U. S. 647; Bowen v. New-
hall, 8 N. Y. 190; Culter v. Reynolds,
64 Ill. 321; Harrison v. Nicollett
Bank, 41 Minn. 488.
* It is nowhere pretended that the
fund is affected before presentment.
Laclede Bank v. Schuler, 120 U. S.
511.
6 Munn v. Birch, 25 Ill. 21, is the
leading case on this doctrine. The
law of the place of payment governs
the effect in this respect. Abt v.
Am. Tr. & S. Bank, 159 Ill. 467; Met.
Nat. Bank v. Jones, 137 Ill. 634; 31
Am. Dec. 406.
7 See notes to Hemphill v. Yerkes,
132 Pa, St. 545; 19 Am, St. Rep. 670.
§ 624.] INEGOTIABLE INSTRUMENTS. 951,
cult to see the want of privity, and the Illinois rule has much
of logic and policy to commend it." -
The depositor's balance does not at any time exceed the
amount which the banker owes him after deducting all reason-
able set-offs which are due; but this is not a matter of mere
book-keeping, the facts control the books.”
At common law he is entitled to the doctrine of set-off, and
by statute in some states the equitable doctrine of compensa-
tion, which recognizes the banker as debtor only to the amount
of the balance after deducting credits, is established.”
Certificates of Deposit.—It is usual for the banker, if re-
quested by the customer, to give him a certificate of deposit,
which is to all intents a promissory note payable on demand;
and this, like a bill of lading, may be transferred from hand to
hand, and passes the title to the holder.
A certified check is one which has been presented and marked
as good or accepted. It is in fact an entirely new contract
between the holder and the banker. The original drawee does.
not contemplate acceptance, but payment; and if, instead, the
drawee take the banker's certificate on the check instead of
the cash, the drawee is released, and the relations between the
banker and the holder are the same as that of depositor and
banker.”
1 Met. Nat. Bank v. Jones, supra.
It is hard to see how this rule should
obtain in New York, where the doc-
trine of privity established in Law-
rence v. Fox, ante, obtains, and where
the assignability of choses is favored.
The new negotiable instrument law
follows the weight of authority.
* A banker has a general lien on
ply the deposit, and a neglect will
release the surety. Mer. & F. Bank
v. Seitz, 150 Pa. St. 632; 30 Am. St.
Rep. 853.
3 Bank of Marysville v. Brewing Co.,
50 Ohio St. 151; 40 Am. St. Rep. 660.
4Smiley v. Fry, 100 N.Y. 262; Auten
v. Crahan, 81 Ill. App. 502. A pass-
book, so called, is the same thing in
the funds of the customer to secure
balances due, but no lien to secure a
debt not due which will affect hold-
ers of the customer's checks. Nib-
lack v. Park Bank, 169 Ill. 517; Mt.
Sterling Bank v. Green, 99 Ky. 262;
32 L. R. A. 568; Schuler v. Bank, 27
Fed. Rep. 424. But as to paper which
is due and upon which there are sure-
ties, it is the duty of the bank to ap-
a different form. Telford v. Patton,
144 Ill. 611.
5 Met. Nat. Bank v. Jones, 137 Ill.
634; 31 Am. St. Rep. 403, note; Lynch
v. Bank, 107 N. Y. 179. It follows,
that a mistake, if discovered before
the rights of third parties intervene,
may be corrected. Dillaway v. N. W.
Bank, 82 Ill. App. 71.
952 TEIINGS. [$ 624.
JMemorandum Checks,— A memorandum check is in the form
of an ordinary bank check, with the word “memorandum”.
written across its face. They are simply evidence of an in-
debtedness of the drawer to the holder, and are not to be im-
mediately presented at the bank so as to destroy credit.
It is the custom in commercial cities to draw and use such
checks merely as due bills.’
Special deposits may be made where the fund is designated
as not belonging to the depositor, and in such cases the fund is
not liable to the creditor of the depositor.” -
When a check has been certified by a bank it is in effect an
accepted bill, and the bank becomes primarily liable for it.”
1 United States v. Isham, 17 Wall. Garretson v. North Atchison Bank,
503. 89 Fed. Rep. 163; 7 L. R. A. 428 and
2 Hemphill v. Yerkes, 132 Pa, St. note. But a parol statement that
545; 19 Am. St. Rep. 607. the drawer is good has not the effect
8 Meade v. Albany M. Bank, 25 N.Y. of a certification. Bank of Spring-
143; Born v. Ind. etc. Bank, 123 Ind. field v. First Nat. Bank, 30 Mo. App.
78; 7 L. R. A. 443; Met. Nat. Bank v. 275.
Jones, 137 Ill.,634; 12 L. R. A. 492;
OUTLINE OF THE LAW OF REAL PROPERTY.
THINGS REAL.
Op. Own ERSHIP.
ESTATES.
Considered with ref-
erence to -
OF TITLE, !
1. Land.
1. Things Corporeal. i. Fixtures
2. Things Incorporeal.
ſ 1. Original source of private ownership.
2. The manner of creating property in land.
-
Property contrasted with tenure.
U 5. Restraints on power and mode of alienation.
3. The capacity of persons to take property in land.
4. The character of ownership which the individual may acquire.
–
r ſ
* 1.
1. The quantity
of interest,
or the dura- +
tion of en-
joyment.
2.
5. As to the
number and
connection of
tenants.
|
i
Freeholds. - i
2. Not of inher-
itance, life
estates.
r
1. For years.
I, ess than tº
2. At Will.
freehold. - 3. O ff
Chattels real. *. On Sutterance.
l 4. Year to year.
1. Ownership.
(Freeholds.)
2. A tenancy.
2. º Of . 1. Legal. 3. Interests
e I e St. a, Il
character of -: without 'pos-
possession. º
Occupancy. |
s and trusts.
2. Equitable. } º: TUI
3. As to time ſ 1. Possession.
when it may + 2. Remainder.
be enjoyed. 3. Reversion.
4. As to the cer- 1. Absolute.
tainty of con 2. Determinable.
al y 3. Conditional.
tinuance.
a. Mortgages.
In severalty.
Joint tenancies.
As partners.
Tenancies in common.
Tenancies in coparcenary.
Tenancies by entireties.
ſ 1. Of inherit- ſ Fee simple.
ance, or in 4 Fee tail.”
fee. Base fee.
For life, or pwr
outer vie.
a. Jure uxoris.
b. Curtesy.
c. Dower.
d. Community.
e. Homestead.
(Less than freehold.)
Easements. *
Or servitudes.
Licenses.
Commons.
Rents.
Annuities.
Franchises.
*This estate is obsolete. See p. 978.
954
t See outline, p. 1007.
CEIAPTER XXX.
TEIINGS REAL.
(PROPERTY IN LAND.)
“What we call the law of property is, in the first place, the systematic
expression of the degrees and forms of control, use and enjoyment that
are recognized and protected by law.” Pollock, First Book of Jur., 159.
SEC. 625. The Aim of this brief sketch of the American Law
of Real Property is to bring clearly to the surface in natural
outline only the essential elements of the system of law regu-
lating the nature of property in land, the manner of acquiring
it, how it may be enjoyed and how transmitted, having in mind
the saying of Fortescue, “whoever knows the principles and
elements of any science, knows the science itself—generally,
at least, though not completely,” and it is hoped that this con-
cise summary may facilitate a clear comprehension of this most
difficult branch of the law.
Difficulties Encountered.—How to accomplish this so that it
may be understood by the reader who is taking his first view
of the subject is a matter of no small difficulty.
The nomenclature in common use is largely that employed
to express characteristic ideas in a system of law essentially
different from our own, and the terms of which cannot be
ignored nor others substituted; for example, the words fee”
and seizin.” have changed their primary meaning.
American and English Law Differ.—The American law of
real property differs fundamentally from the ancient or mod-
ern law of tenure and estates as presented by Blackstone.
This results mainly from the abolition of the institution of
sovereignty, and the consequent obliteration of tenure and its
l Quoted in 1 Wilson's Works, 12. Int., p. 13. While this may be theo-
* Estate, “though called fee, is in retically true, a knowledge of its sig-
truth allodial,” 2 Cooley's Blk. (4th nificance is of great practical import-
ed.), 103, note. ance. See Ft. Dearborn Lodge v.
* Dane says the word is inapplica- Klein, 115 Ill. 177. See post, p. 976.
ble to any American idea. Abridg.,
956 THINGS REAL. [$ 625.
feudal incidents, and from the changes in the status of husband
and wife.
Our system preserves that part of the English law of estates
resting on contract, regulated by those rules of public policy
declared in statutes, or resting on general principles of our
common law.”
We also retain much of their law relating to titles, but dis-
card much which was essential to and depended on feudal
ideas. w
The general topic of real property embraces the right and
interest in (i. e., the estate) the subject, or of the right (i. e.,
the thing),” and the titles by which they are held.
The things which are the objects of the right must be dis-
tinguished from the right in the same manner that we distin-
guish property from the subject of property.”
Jºstate or property means the interest in and to these things real.”
Title is the one word which designates the means of acquir-
ing interests in land (conveyancing)."
The writer's attention has not been called to any modern
Treatise on real property which makes clearly" the primary sep-
aration of subjects, viz.:
The rules providing what degree of property an individual
may acquire from the state, together with the modes of its ac-
quisition, and the rules' of law governing the manner of creat-
ing and transmitting estates in land by private conveyance or
by operation of law. -
These matters are as distinct in our law as is the idea of
1 Van Rensellaer v. Dennison, 35 although Washburn treats the sub-
N. Y. 400. See Holden v. Hardy, 169 ject clearly. Book I, ch. 2, sec. 98.
U. S., at p. 386. Washbwºrm's Owtline.
22 Cooley's Blk., 102, note. pe ſ Corporeal Heredita-
3 See 1 Washb. R. P. 32. ES- ments. (Book I.)
4 Ante, Sec. 575. tates in—
52 Cooley's Blk. (4th ed.) 103, note Real Incorporeal Heredita-
2; Messmore v. Williamson, 189 Pa. Prop- - ments. (Book II.)
St. 73; infra, sec. 634. erty. ſ By Purchase.
61 Washb. R. P. 69. Book III.
7This word clearly is used advis- a-- Titles. "
edly, it not being intended to affirm By Descent.
that any modern writer ignores the º *
distinction pointed out. Blackstone |Blackstone's out.
makes it the basis of separation; but : * kinds.
Washburn, and those who follow him, Things Real { ... j
throw it out of the plan or outline, 4. Titles.
§ 625.] THINGS REALs 957
tenure from that of estate, or estate from title, as treated by
Blackstone and Washburn." * -
Importance of Contracts.- Again, it is believed that sufficient
prominence is not given by any of our authors to the now pre-
dominating influence of the idea of contract as constituting the
principal element in the modern law of real property; that is to
say, that the second branch of the subject is not to be regarded
as independent of contract.”
The use of the words “grant” and “conveyance” has ob-
Scured the real fact that most transactions relating to interests
in land originate in contracts, and are executed by what is but
another form of contract, almost invariably accompanied by
Covenants and conditions which are essentially nothing but
contracts.”
So long as the idea of tenure bounded the quantity of the
estate of private holders, fettered the modes of conveyance, im-
posed incidents and conditions by operation of law, and by these
incidents obtruded itself upon every private transaction, this
view was not important; and in Blackstone's Commentaries we
1 The loss on this account may not
be great if only lawyers are consid-
ered, but the student misses the view
of the articulating parts of the sys-
tem. -
* “We have been laying stress on
the late growth of a law of contract,
SO, for One moment, we must glance
at another side of the picture. The
master who taught us that ‘the
movement of the progressive socie-
ties has hitherto been a movement
from status to contract ' was quick
to add that feudal society was gov-
erned by the law of contract. There
is no paradox here. In the really
feudal centuries, men could do by a
contract, by the formal contract of
VaSSalage or commendation, many
things that cannot be done nowa-
days. They could contract to stand
by each other in warfare ‘against all
men who can live and die;’ they
Could (as Domesday Book says) ‘go
with their land’ to any lord whom
they pleased; they could make the
relation between king and subject
look like the outcome of agreement;
the law of contract threatened to
swallow up all public law. Those
were the golden days of “free” (if
“formal') contract. The idea that
men can fix their rights and duties
by agreement is in its early days an
unruly, anarchical idea. If there is
to be any law at all, contract must be
taught to know its place.” 2 Pollock
& Maitland, Hist. Eng. Law (2d ed.),
232. “The Anglo-Saxon relation of
lord and man was originally purely
personal and founded on mutual con-
tract, and perhaps the act of becom-
ing the man of another or homage,
then, as in aftertimes, was performed
by the person simply declaring that
he would be the man of the lord.”
. . . “As the relation was founded
on contract, it might be accompanied,
it would seem, by any conditions
that were mutually agreed upon.”
1 Spence, Eq. Jur. 36.
8 Fletcher v. Peck, 6 Cranch, 87.
958 THINGS REAL. [$ 626.
find the subject of contracts occupying merely a subordinate,
inferior position, remote from the law of real estate, and ap-
parently affecting only things personal."
Modern View.— All this is now changed, and the change re-
quires a different treatment, necessitating the rejection of all
those matters which are incident to ancient and modern ten-
ures, but preserving those rules of ownership and contract not
depending upon feudal principles.
This change does not disturb the order of treatment with
which the profession is familiar, but gives the active principle
of our law the prominent place formerly occupied by the obso-
lete one, and using the old only as a side light to a clear percep-
tion of the new.
As to the first branch of the subject, namely, the quantity of
interest which a private individual may obtain from the gov-
ernment, and the manner of obtaining it, the greatest change
appears, but unlike the English tenure it has given rise to little
dispute and litigation. The statement, therefore, of a few plain
principles is sufficient to exhibit it.”
In the other branch of the law relating to the creation of
estates in a particular piece of land by segregating the com-
plete ownership into fractional parts of the entire estate, and
the law of private conveyancing (title), there are few changes
in principle. f
SEC. 626. The Title of Nations.—International law, or the
common consent of nations, recognizes several ways by which a
nation may acquire a right to permanently possess a given por-
tion of the earth, viz.:
JDiscovery and occupancy of unoccupied land must always be
by individuals, but always inures to the benefit of the nation.”
The domain occupied only by what are called Savage races is
12 BIk. Com., ch. 30. "" struggle against the remnants of
2 From the time of the imposition
of Norman feudalism by William, the
struggle against it never abated; in
consequence the subject occupies a
prominent place in history and in
text-books. In this country the cor-
responding features of our system
of ownership have caused no fric-
tion and but little litigation; the
feudalism in New York being perhaps
the most important. Van Rensselaer
v. Dennison, 35 N. Y. 393; De Peyster
v. Michael, 6 N. Y. 397; Van Rensse-
laer v. Hays, 19 N. Y. 68.
3Warvell, Real Prop. (2d ed.), 136;
Cherokee Nation v. Georgia, 5 Pet. 1;
Guano Co. v. Id., 44 Barb. 27.
§ 627.] THINGS REAL.
959
considered as unoccupied. Such people are not accorded the
same rights as a civilized nation."
Conquest can only be conducted by nations and can only
benefit them.”
Cession.—Nations may by treaty fix boundaries or cede ter-
ritory.” -
SEC. 627. Subject of Ownership.–7%ings real, as distinguished
from things personal, in which one may acquire property, were
anciently and are now generally designated by and included
in the terms lands, tenements and hereditaments.
This ancient classification, valuable and intelligible only
during feudal times, is more likely to prove confusing than
helpful, but, being everywhere present, a word of explanation
may prove useful.
HEREDITAMENTS.–The term “hereditament” extends to every-
thing, corporeal or incorporeal, which may be taken in hered-
itary succession. The word conveyed a well-defined idea and
performed a definite function in the English system.
It could not have originated before inheritable quality was
recognized, but when the idea prevailed of allowing property
to descend by operation of law to the heir, this faculty of de-
scent was called inheritable, and all subjects to which it at-
tached were termed hereditaments.”
Corporeal.-- Of those things which, in order to embrace all
1.Cherokee Nation v. Georgia, supra;
Johnson W. McIntosh, 8 Wheat. 543.
2 Id.
*Amte, p. 220.
4. At the same time and until 13th
Edw. I, the personal property of an
intestate did not go to his heirs, nor
to his estate, but to the bishop, to be
distributed for the benefit of his soul.
1 Spence, Eq. Jur. 190. Things real
were said to lie in livery or in grant.
Things were said to lie in livery
when the person in whom the first
estate in freehold was vested by the
sovereign had the possession of land
in right of this estate, because by
the common law these things were
properly conveyed by livery of seizin.
Things were said to lie in grant
when One had an estate in any tene-
ment or hereditament, not being .
land, or an estate in land where he
was not entitled to possession, be-
cause before the statute of uses a
grant was the only method of convey-
ing things of this description to a
person who had not some previous
estate. The object of livery was to
give motoriety to the transfer. . For
this reason witnesses were called
who could testify to the ceremony.
The object of livery is now served
by complying with the requirements
of the registration laws. The di-
vision, therefore, of hereditaments
into corporeal and incorporeal is now
of less practical importance than
formerly. Bryan v. Bradley, 16 Conn.
474; Pollock, First Book Jur., p. 177.
61
960 THINGS REALs
[$ 627.
in one word, were spoken of as hereditaments, some are in
their nature corporeal, that is, tangible, having a body which
may be seen and felt, and are embraced in the word “land.”
Incorporeal.—The requirements of society render it conven-
ient or essential that persons other than those in possession of
the land may have certain interests in it or in reference to it.
These, in the nature of the case, must rest on some contract; but
the subject of the ownership is land, and the estate no more
incorporeal than any other so-called corporeal interest not ac-
companied with real possession. The classification is not based
On actual difference. -
Once the idea of permitting descent was established, it ex-
tended to subjects beyond what we embrace within the designa-
tion of estates in land, and then embraced advowsons, tithes,
commons, Ways, offices, franchises, dignities, heirlooms, corro-
dies, annuities, rents, and several things not in their nature
necessarily connected with land, but because of this feature of
permanency and perpetual succession” were classed not as, but
with, real property and termed hereditaments.
In American jurisprudence heirlooms have not generally been
recognized.” Offices are never inheritable,” and franchises are
not generally recognized as hereditaments,” so that the term
“hereditament” does not perform any function not filled by
the words “land and tenement,” and might well be dropped
entirely.
TENEMENT—Is a Word of the Feudal Zaw.— A tenancy of
the crown was the largest degree of ownership which a subject
could acquire. He could obtain this only in those things de-
nominated real. The interest was called an estate; the things
a Červe??vervå. -
Naturally, therefore, tenement broadened somewhat the nat-
ural notion of land, and included the artificial accompaniments
12 Cooley's Blk. (4th ed.) 20, notes.
*The idea was more nearly that of
perpetual succession than inherit-
ance. In discussing hereditaments at-
tention is called to the term “heredi-
tary succession.” It must be borne in
mind that in the old law the heir
took the estate by purchase and not
by inheritance as we now use the
term. Prest. On Estates, p. 11,
31 Washb. Real Prop. 20.
4 Amte, p. 160.
5Thompson v. People, 23 Wend.
579. Franchises were created by
grant, and were held in perpetual
succession, and it is easy to see how
these qualities affixed to them the
classification of hereditament. 2
Cooley's Blk. (4th ed.) 37; 2 Washb.
R. P. 291–293. But see post, p. 995.
§ 628.] THINGS REAL.
961
which civilization, with commerce and husbandry, requires, and
whatever could be holden of another in tenancy, i.e., in which
the other retained a reversionary or paramount right, was a
tenement, and its holder or owner in the old nomenclature was
a tenant." $
LAND, meaning the soil, was in the old law a tenement, for
in reality or in fiction, according to the English system of ten-
ures, all land was held mediately or immediately of the crown.
SEC. 628. Land means more than so many square rods of the
surface, and includes the space above, and to a qualified extent
the water upon or which may pass over the surface. The law
recognizes also that the subsoil may be used in connection with
or separated from the surface, and the same is true as to min-
erals, subterranean waters and gases.”
In its legal signification it is of comprehensive import and
includes whatever is part of the terrestrial sphere, or attached
thereto, and signifies, in short, all subjects which admit of
manual occupation and are in their nature permanent and im-
movable.”
Buildings.- As a general rule, when a building is placed on
land, though by a stranger, the presumption is that it is a part
of the real estate, and before it can be treated otherwise a state
of facts must be shown rebutting the presumption.*
1 Preston on Estates, pp. 8–10. It is
difficult to express the real distinc-
tion between lands, tenements and
hereditaments. It is also difficult to
find any practical use which was
made of these distinctions, even by
Blackstone. Preston mentions Black-
stone's lack of clearness, and Cooley
denies his correctness. The student,
therefore, need not feel discouraged
if the matter is not plain on first
reading. See 1 Burr. 110.
* A given portion of the earth ex-
tending upward and downward from
the surface may be separated into
Several fee-simple estates. See next
page.
*The rule by which land has an
indefinite extent upwards and down-
wards is an arbitrary rule of law, and
the legislature may provide at any
time that for the future, and there
being no interference with improve-
ments or contracts already made,
buildings and other improvements
upon land shall be deemed person-
alty. Ross v. Irving, 14 Ill. 171. At
common law valuable mines did not
go with the land. *
The Georgia code, which purports
to be declaratory of the common law,
reads as follows: “Realty, or real es-
tate, includes all lands and the build-
ings thereon, and all things perma-
nently attached to either, or any
interest therein, or issuing Out of, or
dependent thereon.” Bagley v. Co-
lumbus SO. R. Co., 98 Ga. 626, 34 L.
R. A. 292.
4 Titus v. Maybee, 25 Ill, 232. See
“Fixtures,” post, p. 963.
962 THINGS REAL. [$ 628.
Minerals.- Coal and minerals in place are land, and subject
to conveyance as such. The owner of a mineral right has an
interest which he may convey distinct from the surface."
Matural gas has become of great utility and value and may
be granted without granting the entire estate,” and does not
pass by a grant of coal.”
Jee.— Different considerations apply to water flowing in a
stream, and ice formed on its surface. When frozen and fixed
it is considered a part of the realty, and the owner may pre-
vent its removal by others or use and dispose of it as he sees
fit." When sold, cut or uncut, it is considered personalty.”
Crops and Trees.—As between a trespasser and the owner
of the soil, or a vendor and vendee, crops are real estate, and it
is generally held that crops while attached to the land, as well
as trees and shrubs, fruit and grass which grow spontaneously,
are part and parcel of the land and pass by conveyance thereof."
JManure.— It is held generally that manure produced by cat-
tle fed on the products of the farm is prima facie part of the
realty, but when it is produced otherwise than in the course of
husbandry, as in connection with a hotel stable, or livery barn,
it is personalty."
Church Pews.-In this country church pews are held by a
peculiar title and as a qualified and usufructuary right. In the
absence of a statute or customs of the church the property of
a pew owner is to be treated as real estate,” and for a disturb-
ance he may maintain trespass or writ of entry.”
1 Caldwell v. Fulton, 31 Pa. St. 475;
Tºnight v. Ind. Coal & Iron Co., 47
Ind. 105; Lillibridge v. Lack. Coal
Co., 143 Pa. St. 293; 13 L. R. A. 627,
note.
2 Chartiers Coal Co. v. Millon, 152
ºpa. St. 286.
3 Id.; Williams v. Jones, 39 W. Va.
231; 25 L. R. A. 222, note.
4 Wash. Ice Co. v. Shortall, 101 Ill.
46.
5 Higgins v. Kusterer, 41 Mich. 318.
6 Powell v. Rich, 41 Ill. 466; Hoff-
man v. Armstrong, 48 N. Y. 201. The
status of crops as between landlord
and tenant will be considered under
the head of “Emblements,” as an in-
cident of life estates.
7 Snow v. Perkins, 60 N. H. 493;
Fay v. Muzzey, 13 Gray, 53; Lewis v.
Hyman, 22 Pick. 437.
8 Mainwaring v. Giles, 5 B. & Ald.
360. By statute in some states this
property is made personalty, in oth-
ers realty.
9 O’Hear v. De Goesbriand, 33 Vt.
593; 80 Am. Dec. 653. See note. Gay
v. Baker, 17 Mass. 435. In England the
right to a church pew is regarded as
in the nature of an easement, and
case only will lie for a disturbance of
the occupant. Crabb's Real Prop. 406.
§ 628.] THINGS REAL. - 963.
- -º
Burial Lots.--Whatever custom may have affixed as incident,
to public burying grounds, or to cemeteries belonging to re-
ligious societies in England or the early colonies, it is clear
that the nature of the interest of one in land set apart as a
cemetery must depend upon the conventional arrangements by
which he obtains his title, and the covenants of which deter-
mine the interest and estate therein.
There is no law restricting the purchase of a small piece of
ground in fee-simple absolute and placing therein the remains
of a deceased friend or kinsman, so the nature of the interest
may be a mere license, or a fee simple, or any intermediate es-
tate."
FIXTURES.— A fixture is a thing personal in its nature, which,
by being attached to the land with the intention of making a
permanent annexation, becomes a part and parcel of the realty.
The question as to what are to be considered fixtures arises
in various phases, e.g., between the heir and executor, vendor
and vendee, mortgagor and mortgagee, landlord and tenant,
executors and creditor, a creditor, a tenant and the landlord,
and no rule can be laid down as to what, under all circum-
stances, shall be considered a fixture. The rule varies according
to the relation of the parties and the circumstances attending
annexation.
In determining the question, regard must be had, first, to the
character of the annexation; second, the intention of the party
in making the annexation; and third, the nature of the article.
The annexation may be actual or constructive. When a thing
is actually attached to the soil the annexation is actual.”
It is constructive when the article is not fastened to the
realty in any solid manner, but is slightly attached to it in
some temporary way,” or is so ponderous as to be fixed by its
own weight; but in such cases the article is prima facie per-
sonalty.” So railway rolling-stock has been held to be realty.”
1 Thirkfield v. Cem. Ass'n, 12 Utah, 4 D'Eyncourt v. Gregory, L. R. 3
76; Hancock v. McAvoy, 151 Pa. St. Eq. 382. See Titus v. Mabee, 25 Ill.
460; 31 Am. St. Rep. 770. 232.
*Williamson v. N. J. S. R. Co., supra. 5 Minnesota Co. v. St. Paul Co., 2
Instances of such constructive an- Wall. 644; Titus v. Mabee, supra.
nexation are keys, doors, windows But not generally so. See High v.
and blinds of a house. Plattsburg Rºy, 54 N. Y. 314,
3 Id.
964. THINGS REAL. [$ 628.
The degree of annexation is not of great importance; but
generally, in order that the article may be considered a fixture,
it must be so attached as to give a fixedness in location, or
localization in use, unless it be in states where rolling-stock is
regarded as a fixture.
As between heir and executor, vendor and vendee, mortga-
gor and mortgagee,_those persons having a permanent estate
in the land,- it is presumed from the permanent manner of an-
nexation that the intention is to make a permanent improve-
ment.
It is competent for parties to give to a permanent improve-
ment the character of a chattel, and where such is the case it
may be removed, provided such removal will not involve an
injury to the interest of One not a party to the contract.”
Trade and Husbandry Fatures.—As between landlord and
tenant the strictness of the rule for determining what shall be
considered a fixture is much relaxed.
The common-law rule was that whatever was annexed to the
inheritance during the tenancy must be abandoned at the ex-
piration of the term. *
An exception was very soon made as to the improvements
placed on the land for the purpose of carrying on trade or
manufacture;” but the exception made in favor of trade fixtures
was not extended in England to erections made solely for pur-
poses of husbandry.*
At an early date a more liberal rule was adopted in this
country, and the exception was made to include agricultural
fixtures, and such were allowed to be removed unless the re-
moval was attended by permanent injury to the premises.”
The removal in all cases must be during his term, if it be of
certain duration," or if not then within a reasonable time after
its termination."
1 Last note supra.
2 Ford v. Cobb, 20 N. Y. 344; Car-
penter v. Allen, 150 Mass. 281; Buz-
Zell v. Cumming, 61 Vt. 213.
8 Elwes v. Maw, 3 East, 38; Van
Ness v. Packard, 2 Pet. 137; Climi v.
WOOd, L. R. 4 Ex, 328.
* Boyd v. Shorock, L. R. 5 Eq. 572.
* For illustration and general dis-
cussion of the laws, see Vaughn v.
Huldeman, 33 Pa. St. 522; Maples v.
Milan, 31 Conn. 598.
6 Watriss v. First Nat. Bank, 124
Mass. 571; White v. Arndt, 1 Whart.
91.
7 Mackintosh v. Trotter, 3 M. & W.
184; Antoni v. Belknap, 102 Mass. 193.
§§ 629, 630.] THINGS REAL.
965
The whole question must be considered in the light of cir-
cumstances surrounding the case, and of the varying modes of
life and changing customs of business."
SEC. 629. Origin of Individual Property in Land has been
heretofore mentioned, and we may, merely for the purpose of
clearness, here repeat what seems the accepted doctrine as
stated by Wilson, who agrees with Paley that the “real foun-
dation of it is municipal law.””
Brivate ownership can only be acquired from the state by
grant.
Mere occupation, though frequently spoken of as if it were
a source of private title, is never so.
It can never ripen into
a right against the people;” the maxim of the law being that
time does not run against the state.”
SEC. 630. Distinction. Between Feudal Tenancy and Allodial
Ownership.”—Under the later Roman law, the dominium utile,
i. e., the right to use, was distinguished from the ownership,
dominium directum, as it was called.
The dominium directum always remained in the state, but
an absolute right of enjoyment, or dominium utile, descendible
and alienable, might be acquired by individuals by sanction of
the state.
This is precisely like a feud."
The Saa.on law “originally gave the absolute property with
1 This is well illustrated by the case
of Phial Mort. & Tr. Co. v. Miller
(Wash.), 56 Pac. Rep. 382; Tieff v.
Hewitt, 1 Ohio St. 511; Williamson
v. New Jersey S. R. Co., 29 N. J. Eq.
311; 1 Gray's Cas. 768; Hopewell Mills
v. Taunton Sav. Bank, 150 Mass. 522;
National Bank v. North, 160 Pa. St.
303.
22 Wilson’s Works, 483. See, for
the views of Marshall, Chase, Mac-
Intosh and others, ante, p. 693. Black-
stone, in the first book of the Com-
mentaries, expressly states that the
true reason and only ground for
allowing forfeitures for crimes con-
sisted in the fact that all property is
derived from society. Page 299.
3 Jackson v. Frost, 5 Cowen, 346;
ante, p. 692.
4 Nullwm.
tempus occurit regi.
Broom's Max. 65; Hughes' Tech. 133.
The rule is otherwise, by statute, in
Some states. Wheeling v. Campbell,
12 W. Va. 46. This maxim, however,
does not apply to municipal corpora-
tions. Meyer v. Graham, 33 Neb. 566;
18 L. R. A. 146.
52 Cooley's Blk. (4th ed.) 104.
61 Spence's Eq. 31. A fewd is de-
fined by Sir H. Spelman, the father
of the modern English feudists, to
be “a right which the vassal hath in
the land or some immovable thing
of his lord’s, to use the same and
take the profits thereof heredita-
rily—in perpetuum,_rendering unto
his lord such feudal duties and Serv-
ices as belong to military tenure;
the mere propriety of the Soil always
remaining in the lord.” 1 Spence's
Eq. 32–84.
966 THINGS REAL. [$630.
all its incidents, equivalent to the dominium directum of the
Roman law, . . . to the owners of the original allotments.
made at the Anglo-Saxon conquest. The allodial owner, unless.
fettered by some restriction' imposed by those under whom he
claimed, had the absolute power of alienation and disposition
by gift and sale. The owner of allodial, or, as it was called,
boe land, might grant it absolutely or for a limited interest, re-
serving or granting away the reversion at his pleasure. So he
might impose any conditions or services he thought proper;
nor was there anything to prevent an estate of any kind or
quantity being granted, and whether to take effect presently
or at a future day, or on the happening of any given event.
The only check upon individual caprice in these respects (for
the written law was silent) was that in the event of any dis-
pute in respect of the amount of the interest granted, or the
time at which it should west, or the services or conditions im-
posed, the assembled thanes, at the county or hundred court
under their ecclesiastical and civil president, would pass their
judgment upon them.””
Of English feuds, Spence states: “In entering on this sub-
ject the attention of the reader must be recalled to the fact.
that from the time when William I. established the doctrine
of tenure as the general law,” there was a marked distinction
between movable property or personal estate, and immovable
or real property. This doctrine was not applied to property
of the former description; generally speaking, the owner of
personal property was entitled to the thing itself as well as its.
profits; the dominium directum, and the dominium utile were
still united; consequently, as regards property of this descrip-
tion, the ancient right of alienation by will, as well as by sale
or gift, which was incident to allodial title, still existed in all
its integrity; though the mode of disposition by will under-
went some change, as will be noticed hereafter. But it was dif-
ferent as regards immovable or real property — as land. The
dominion of the soil, dominium directum, and the right to the
1 Contract, as distinguished from should be paid to the distinction be-
general rule of law. tween those matters which were inci-
21 Spence’s Eq. Jur. 135. dent to feudal or allodial holding
3It is desirable, in order to more and those things which were left to.
easily understand some cases which be fixed by contract according to the
will be cited, that especial attention desire of the parties.
§ 630.] THINGs REAL. 967
use and profits of the soil, dominium utile, were dissevered;
the highest interest which a subject could acquire was the
dominium utile, that is, the right to hold, use and enjoy; this
right was designated by the term seisin.” "
Feudalism, a Political Institution.— It will be apparent, upon
investigation and reflection, that the fundamental principles of
the feudal system are not the regulation of land tenures.” The
manner of holding and enjoying land is but a consequence of
the principles dominating the political organization of society.”
The individual subjects of the sovereign could not upon prin-
ciple, nor would not on grounds of policy, be allowed to obtain
a pure allodium, and that freedom of contract between sub-
jects in reference to the land held of the sovereign must always.
11 Spence's Eq. Jur. 135, 136. “A
feoffment in fee did not originally
pass an estate in the sense in which
we now understand it. The pur-
chaser took Only an usufructuary in-
terest, without the power of aliena-
tion in prejudice of the heir or of the
lord. In default of heirs the tenure
became extinct and the land re-
verted to the lord. The heir took by
purchase, and independent of the an-
cestor, who could not alien, nor could
the lord alien the seignory without
the consent of the tenant. This re-
straint on alienation was a violent
and unnatural state of things, con-
trary to the nature and value of prop-
erty, and the inherent and universal
love of independence. It arose partly
from favor to the heir, and partly
from favor to the lord, and the genius
of the feudal system was originally
so strong in favor of restraint upon
alienation that by a general ordi-
nance mentioned in the book of
Fiefs, the hand of him who wrote a
deed of alienation was directed to
be struck off (3 Kent's Com. 506).”
“By the old feudal law the
tenant could not alien his fee with-
out the lord’s license, and the lord
Could not alien his seignory without
the tenant's attornment.” De Peyster
v. Michael, 6 N. Y. 497–506.
2 “Feudalism is an unfortunate
word. In the first place it draws.
our attention to but one element in
a complex state of society, and that
element is not the most distinctive;
it draws our attention only to the
prevalence of dependent and deriva-
tive land tenure. This, however, may
well exist in an age which cannot be:
called feudal in any tolerable sense.
What is characteristic of ‘the feudal
period' is not the relationship be-
tween letter and hirer, or lender and
borrower of land, but the relation-
ship between lord and vassal, or
rather it is the union of these two.
relationships.” Pollock & Maitland's.
Hist. of Eng. Law, vol. 1, p. 66. The
political rights of subjects were inti-
mately associated with their relation,
to the soil. See Webster's argument
in Luther v. Borden, 7 How. 1; also
Ashly v. White, Ld. Ray. 938.
3 The tenure of land, as it is called,
must in every system of government
be an important political question.
The relation of the occupiers of the
soil to the ownership of it and to the
government must to a large extent
measure the degree of liberty en-
joyed. See 1 Burr. 115.
968 THINGS REAL. [$ 631.
be restrained by limitations resulting from the nature of the
relation of lord and man.
SEC. 631. Ownership of Land in the United States.—So long
as the original colonies now constituting a portion of the
United States were dependencies of England, the principles
of the feudal system, to a greater or less degree, prevailed.
At some time or other all land was held in tenure," but
when the political principles declared in the Declaration of In-
dependence became incorporated into a national constitution,
established upon the principle that no man could become the
sovereign of another, the foundation of the feudal system was
swept away. The highest degree of ownership in land is
called a fee, but it is in truth the exact opposite of a fee as under-
stood in the English law of the eighteenth century.” It is to
all intents and purposes an allodial property in land, and, so
far as the public is concerned, when it is once fully acquired
by the individual it has nothing of the feudal nature remain-
ing.”
The nation imparts everything which in the nature of the
case it can give, retaining only the function of protection and
regulation.* The escheat, so called, is not a reversionary inter-
est, which may by express or implied contract or condition be-
come an estate, but is merely the right of the state to take the
land on the contingency that land becomes without an owner
because the inheritance line becomes extinct.”
1 Chisholm. v. Georgia, 2 Dall. 419.
Free and common socage by fealty
only. •
22 Cooley's Blk, (4th ed.) 102.
8 “In America as in England, the
sovereignty is recognized as the
source of all title, and the state suc-
ceeds thereto in default of heirs; but
this right is not peculiar to the
feudal system; neither is the emi-
nent domain, which is sometimes re-
ferred to as a remaining incident of
the feudal system.” 2 Cooley's Blk.
(4th ed.) 103. Chancellor Kent has
well said: “Thus, by one of those
singular revolutions incident to
human affairs, allodial estates, once
universal in Europe, and then al-
most universally exchanged for
feudal tenures, have now, after the .
lapse of many centuries, regained
their primitive estimation in the
minds of freemen.” See 2 Cooley's
Blk. (4th ed.) 102.
4 “The principal end for which the
first institution of property was es-
tablished was to preserve the peace
of mankind, which could not exist
in a promiscuous scramble. There-
fore a moral obligation arose upon
all ‘that none should intrude upon
the possession of another.’” Yates,
J., in Millar v. Taylor, 4 Burr. 2365;
2 Cooley's Blk. (4th ed.) 10.
5 Meadowcroft v. County (Ill.), 54
N. E. Rep. 949. *
§ 632.] THINGs REAL. 969
But, after all, this does not change the nature of the subject
of property, but affects the quality of that ownership. The
soil, the land, is still only land, and in contemplation of law
immovable and indestructible, and by no fiction or change of
name can there be acquired more than the power to use for
a life-time, except that by private and public agreement the
individual may be given the power to direct by agreement,
conveyance or devise the use it may be put to, or by whom it
may be used for a period of time longer that he can possibly
use it, and to a period of remoteness limited by the general rules
of law, which bound the utmost compass of his dominion.”
The freedom from personal exactions as a condition of aliena-
tion, and the divorcement of personal, political and civil rights
from the ownership of land, are the essential differences be-
tween feudal and allodial political systems.
Rules limiting the power of the owner in regard to the crea-
tion of remote estates,” or the course of ownership which the
land must take in futuro, do not depend on feudal principles.
SEC. 632. Devolution of Title from the Government.— The
public domain of the nation or states is not held for the pur-
pose of speculation, nor is it contemplated that the whole or
1 “But is there any distinction be-
tween the real estate itself or its
Owners in respect of it and the rents
Or income of the real estate coming
to the owners as the natural and
Ordinary incident of their ownership?
. . . As according to the feudal
law the whole beneficial interest in
the land consisted in the right to
take the rents and profits, the gen-
eral rule has always been, in the lan-
guage of Coke, that “if a man seized
of land in fee by his deed granteth to
another the profits of those lands, to
have and to hold to him and his
heirs, and maketh livery secundum.
Jormam chartoº, the whole land it-
Self doth pass. For what is the land
but the profits thereof.” Co. Lit. 45.
And that a devise of the rents and
profits or of the income of lands
paSSes the land itself both at law and
in equity, 1 Jarm. on Wills (5th ed.),
798, and cases cited. . . . It is the
substance and not the form which
controls.” Fuller, C. J., in Pollock v.
Farmers’ Loan & Trust Co., 157 U. S.
429, 580, 581; Eaton v. B. C. & M. Rºy,
51 N. H. 504.
2 “Ownership,” says Pollock, “may
be described as the entirety of the
powers of use and disposal allowed by
law. This implies that there is some
power of disposal, and in modern
times we should hardly be disposed
to call a person an owner who had
no such power.” He adds in a note:
“For this reason I cannot think it
quite correct to say that “irresponsi-
ble possession, protected by a remedy
availing against all others, makes
ownership.” (Williams, Real Prop.
(14th ed.), p. 10.)” Pollock's Jur.
Book 1, 166; post, § 633.
* That is the rule against creating
perpetuities.
970 THINGS REAL. [$632.
any portion of it shall be made a vast manor, or to farm or im-
prove by the hiring of servants or leasing to tenants. Such an
object is not within any of the grants of power, nor is it a
proper or necessary means of accomplishing any express object
of government. -
The policy of the national government, as declared by the
acts of congress, deeds of cession and other public documents,
is to hold the land for bona fide settlers.
The homestead and pre-emption laws exhibit the method of
granting the land, either to actual settlers, who erected their
home upon the same, or a public sale to the first person who
located or pre-empted it."
The grant of original title from the government is called a
patent. Unlike an ordinary deed it needs no delivery.” Once
issued and recorded or delivered it is beyond recall, and the
patentee’s estate can only be affected by judicial process.”
These two modes are not the only modes of disposition recog-
nized by the government.
The United States has in many instances contracted to grant
or granted lands by contracts or grants containing conditions
precedent and conditions subsequent which prevented the com-
plete vesting of title or forfeited the title of the holder."
This has been done generally in cases intended to effectuate
the object of public aid for a public purpose. In such cases
grants have been made on condition providing a forfeiture for
the non-performance of a service or of the act designed to serve
a public purpose.
The public reservations are also authorized by our law, and
congress has expressly and impliedly recognized the right of
the executive department to withhold or reserve from sale
certain portions of the public domain for the use of the public,
1 The settler's right during the time 3 Id.
allowed for completing the occu-
pancy and improvement necessary
to obtain a patent is in the nature of
a vested but inchoate right. If he
acts in good faith he cannot be guilty
Of waste. He is proprietor as against
third persons. See Shivers v. United
States, 159 U. S. 491; Stone v. United
States, 167 U. S. 178. -
* Gilmore v. Sapp, 100 Ill. 297.
* Where the condition is precedent
the legislative act amounts to a con-
tract to grant. Pacific Ry. Co. v.
United States, 124 U. S. 124; Farns-
worth v. Minn. Pa. Ry. Co., 92 U. S.
49. Condition subsequent may be in
the deed. United States v. C. P. Ry.
Co., 118 U. S. 238. See 1 Cooley's
Blk. (4th ed.) 153, 154, and note.
§ 633.] THINGS REAL. 971
and also vast tracts, known as Indian reservations, upon which
to furnish habitations for the unfortunate natives from whom
the whole domain has been Wrested."
The public may also become a holder as proprietor as dis-
tinguished from possession as sovereign.”
SEC. 633. The Right to Alien Land —The Jus Dispomendi.”—
The very idea of ownership involves the capacity to transfer."
This is a principle older than the common law of England.”
When the political institution called feudalism was imposed
upon the people, the sovereign arrogated to himself this com-
plete ownership," and when it was established in England the
tenants of the crown got nothing but a tenancy without the
power of alienation. -
Gradually, however, alienation was allowed; it began in
grace, became customary, and ripened into a right. -
In time the right to alien the land, after the birth of issue,
became so complete as to vest the holder with practically a fee-
simple estate." -
The practice early arose of creating estates descendible in a
specified line, as to the heirs of the body of the grantee.
These were called conditional fees, and were alienable by the
grantee after such issue born.”
To prevent this alienation, and to establish firmly entail es-
tates, a statute known in history as the statute de don's was
passed, limiting the powers of the tenant to the disposition of
his estate during his life, so that an estate tail was substituted
for the fee simple, the tenant having really but a life estate.
It required two centuries to completely overcome this stat-
ute, although in the meantime the courts devised what is known
as a common recovery as a sort of antidote for the bane of en-
1 Wilcox v. Jackson, 13 Pet. 498;
Mo, Pac. Ry. Co. v. Musser-Sauntrey
Co., 168 U. S. 604.
2 Coxe v. State, 144 N. Y. 396.
* This quality of alienability means
more than merely the tenant's right
to Sell; it includes the right to sell
Or transfer in process or proceeding
against him, as on execution or in-
solvency proceedings. Bull v. Ken-
tucky Nat. Bank, 90 Ky. 452.
4 But the right to transmit after
death rests on a different foundation.
Re Hamilton, 148 N. Y. 373; United
States v. Fox, 94 U. S. 315; ante, p. 969.
5 See Grotius, book 1, ch. 6, sec. 1,
quoted in De Peyster v. Michael,
6 N. Y. 493.
6 See opinion of Wilson, Justice, in
Chisholm. v. Georgia, 2 Dallas, 419.
7 Croxall v. Shererd, 5 Wall. 287.
8 Id.
972 THINGS REAL. [$ 633.
tail estates; but it was not until the statute of quia emptores”
that every freehold became again freely alienable.
In America the law has been influenced by these same stat-
utes wherever they have been in force; but it may be laid down
as a general proposition that no deed of land purporting to
convey a fee can be coupled with a condition against aliena-
tion, with implied penalty of forfeiture to the grantor in case
of breach. In such cases the grant holds good as a conveyance
and the condition is void.” -
LIMITs of THE PowHR of DISPOSITION.—The policy of modern
law is to encourage the transfer and traffic in land and create
the utmost compass of ownership and disposition consistent
with this principle; but to allow a present owner to direct the
future ownership of land for all time would be to defeat the
very policy of the law, so that the rule against perpetuities,
instead of being in restraint of alienation, in fact favors it.
If this power of the present owner were unlimited, in a broad
sense, he might direct where it might go for all future time;
but the law sets bounds in this regard as to the creation of fut-
ure remote estates,“ and this is ealled the rule against perpetui-
ties, which, Professor Gray very appropriately says, should
have been termed the rule against remoteness.
A restraint on alienation, properly so termed, is a restriction
against the right of a person presently interested to dispose of
his interest so as to vest it in another.
With one or two exceptions, e.g., spendthrift trusts and chari-
ties, Our law does not restrain the free and absolute alienation of
any interest by its present beneficial owner.
The power of complete control and disposition of interests
which One may have in land must be considered from a double
standpoint.
First. From the standpoint of the owner's power to direct
the future disposition and use of the estate. -
ASecond. As to the power of the present owner to create an
interest in the grantee, either for his benefit or for the benefit
of a third person, which shall be inalienable.
1 Lyle v. Richards, 9 S. & R. 352; *Professor Gray says a bequest to
Croxall v. Shererd, 5 Wall. 287. the descendants of the testator who
218 Edw. I., ch. 1. shall be living fifty years after his
* De Peyster v. Michael, 6 N. Y. 493. death is bad. Perpetuities, p. 1.
§ 633.] THINGS REAL. 973.
The Rule Against Perpetuities.—An executory interest (i.e.,
one to begin in futuro) must west within the period of a life or
lives in being at the time when the provision creating it takes
effect, and allowing a period of twenty-one years in addition;"
and in case of a posthumous child being the claimant, a period
of nine or ten months more will be allowed.” e
It is not sufficient that it may so vest, but it must be impera-
tive that it shall so vest; for if, by the provisions of the instru-
ment, i. e., the limitation, it might West at a later period, it
violates the rule against perpetuities, and the provision is void,
in which case the last prior conditional estate becomes a fee.”
Conditions against alienation by the donee * cannot be made
in a fee-simple estate, although there may possibly be a condi-
tion against alienation in a particular direction.”
Spendthrift Trusts a Jęestraint on Alienation.—It has been
a matter of great discussion and much conflict of opinion as to
whether an owner might convey land in trust for the benefit
of some object of his affection and bounty, and yet not vest in
such beneficiary an interest alienable in its nature.
This question is discussed under the name of “spendthrift
trusts,” and it is the prevailing doctrine in the United States
that creditors not being deprived of a legal right have no in-
terest in the subject-matter, and that public policy does not
condemn such a provision in a deed or a will."
Charitable trusts or uses, by which property is devoted per-
petually to a certain charitable object, such as educational," hos-
1 The reason for fixing the period
of twenty-one years was originally
to allow a child to become of age;
but it applies equally where no such
child is interested. Gray on Perpetu-
ities, 113–130. Mr. Gray discusses
this rule historically and logically
with such detail and accuracy as to
leave little to be said except by way
of repetition or illustration.
2 Gray on Perpetuities, 127; An-
drews v. Andrews, 110 Ill. 223; Gore
v. Gore, 2 Stra. 958. -
3Mandelbaum v. MacDonald, 29
Mich. 93; Pennington v. Pennington,
70 Mól. 418.
*This phrase does not express the
idea implied, that what he may alien
may be seized by legal process and
sold, which is the manner in which
questions of this kind usually arise.
5 De Peyster v. Michael, 6 N. Y. 495.
6 Nichols v. Eaton, 91 U. S. 716;
Broadway Bank v. Adams, 133 Mass.
170. See Gray’s “Restraints on Alien-
ation.” Also article by A. P. Will, 49
Cent. T. J. 185.
7 Female Academy v. Sullivan, 116
Ill., 375; Andrews v. Andrews, 110
id. 223.
974. THINGS REAL. [$ 633.
pital or religious institutions, do not generally fall within the
prohibition against creating perpetuities. Where a corpora-
tion is the grantee, the matter falls within the letter of the rule
against allowing corporations to take and hold perpetually,
which is the subject of prohibition by Magna Carta and stat-
utes of mortmain." And where they are to begin in the future
after the intervention of other estates, or the creation of a cor-
poration trustee, the question is an open one.”
Astates Tail.— Estates tail are not allowed in the United
States. - " " ,
Notwithstanding this rule, the fact that it results from stat-
utory provisions which direct that words which would at com-
mon law create an entail shall west some other estate in the
donee renders it essential that a sufficient knowledge of them
be had to detect when the language in a deed or a will falls
within the provision of these statutes.” -
An estate tail was an estate in fee, limited to the grantee
and particular heirs (less than his heirs general) of his body in
lineal descent. -
Before the statute de don’s (1285) such an estate was called
a conditional fee, because in default of such heirs the condi-
tion of the grant was that the estate reverted to the grantor.”
After issue born to the grantee of one of these conditional
fees he might sell the land and completely cut off the right of
reverter in the grantor.
This did not sufficiently trammel the estate in a particular
line to insure the perpetuity of that line, and the statute de
don's was passed cutting off the power of alienation, and turn-
ing the old conditional fee into an estate tail; for it was the
very object of the statute in creating estates tail to confine an
estate for so long a period as possible to a special, direct line
1 In re McGraw, 111 N. Y. 66.
2 Gray’s Rest, on Alien., ch. XVIII;
Ould v. Wash., etc., 95 U. S. 303.
3 E. g., as is remarked of such a
statute in Lott v. Wykoff, 2 N. Y.
357, the statute often overrules the
intention of the donor. “The law of
1786 does not prohibit them, but when
Created turns them into estates in fee
simple.” The act of April 27, 1855,
of Pennsylvania, was to the same
effect. Grimes v. Shirk, 169 Pa. St. 77;
Bodine v. Arthur, 91 Ky. 53; 34 Am.
St. Rep. 162. -
4 Croxall v. Shererd, 5 Wall. 287.
There are essential distinctions be-
tween a conditional fee and an estate
tail. See Outland v. Bowen, 115 Ind. .
150; 7 Am. St. Rep. 420, with valu-
able note.
§ 634.] THINGS REAL- 975
of descent, and in this manner maintain the grandeur of noble
families."
SEC. 634. Fºstate in Land means the character of owner-
ship, or the nature of interest which one has in it. Complete
ownership may be in a single person, or this entire interest may
be enjoyed as an entirety by a number of tenants, or the estate
may be split up into smaller interests. So also the same land
may be made to sustain many estates. One man may have
merely an easement to pass over the land, another to till the
soil, another to draw water from a well, or take minerals from
under the surface, or extract the gases or salt water, etc.”
CLASSIFICATION.—All estates may be, for the purpose of clear-
ness, presented—
First. With reference to the duration of enjoyment, or, as it
is classed by ancient writers, the quantity of interest.”
Second. The nature of the interest and character of posses-
sion.
Third. With reference to the time of enjoyment, or, as it is
expressed, the time at which it is to be enjoyed.
The first and third divisions have reference to the time of en-
joyment, but the former relates to the extent or duration of
time, the latter to the period when the enjoyment shall begin
with reference to other estates.
1 Per Lord Mansfield in Taylor v.
Horde, 1 Burr. 115; Mandelbaum V.
MacDonald, 29 Mich. 83; Croxall v.
Shererd, 5 Wall. 287. No better illus-
tration of the futility of attempting
to bind lawyers and courts by stat-
utes can be found than that afforded
by the statute de domis and the meth-
ods taken to evade it. This neces-
sity resulted in the invention of —
The common recovery, a collusive
suit, which was nothing but a spe-
cies of conveyance through the me-
dium of the courts, by which the
statute was habitually evaded. Tyle
v. Richards, 9 S. & R. 352; 2 Cooley's
Blk. (4th ed.) 360. Another device
was a fine, another fictitious proceed-
ing. It was in the teeth of the statute,
but was declared by 32 Hen. VIII. to
be a complete bar to the tenant in
tail and his heirs. See 2 Cooley's
Blk. 36. . In case of a fine the Suit;
was compromised before judgment,
while in the case of recovery judg-
ment was entered and executed.
Watkins, Prin. of Convey., 272. The
fine was the most effectual of the
methods, however. Croxall v. Sher-
erd, 5 Wall. 287. The reason for their
existence having ceased, they are, if
not obsolete, long since in innocuous
desuetude. Gregory v. Comstock, 17
N. Y. 162.
2 Ante, pp. 961, 962.
32 Cooley's Blk, (4th ed.) 103; Mess-
more v. Williamson, 189 Pa. St. 73.
But in construing statutes and docu-
ments it is not always proper to ad-
here so closely to the technical mean-
ing as to ignore the intended popular
use of the words. Troth v. Robert-
son, 78 Va. 46; Taylor v. Horde,
supra, 1 Sm. Ld. Cases.
62
976 THINGS REAL- [$ 634.
JFourth. As to the certainty or uncertainty of the continu-
3UIſlC6. s
Jºfth. As to the number and connection of tenants.
The second mode of classifying estates above mentioned,
while not found ea pressed in any of the treatises, marks a dis-
tinction between estates quite as important in its practical
utility as the distinction between freehold and less than free-
hold. It distinguishes the three great classes of interest, viz.:
Ownership, tenancy, and interests not involving possession."
It is not the duration of enjoyment which distinguishes these
from the other two, for they are themselves classed as freeholds
and less than freeholds. It is the character of the interest, not
the character of the thing, which is the subject of the interest.
FREEHOLD AND LESS THAN FREEHOLD.— All estates” are, as to
duration, either of freehold or less than a freehold.
This classification has reference to the dignity rather than
value. At the partitioning of the land among the followers of
William the Conqueror, no freeman” would at that time accept
any allotment to continue for less than his life; because con-
sidered appropriate to a freeman it was called freehold. In
the beginning, the estate, not being alienable by him, nor yet
having the inheritable quality, the tenancy for life was the
greatest estate which one could get, as it was the greatest he
could enjoy;” so that at that time the actual coincided closely
with the natural, and this estate, though changing in its char-
acter, still retains the ancient name freehold.
1 Lord Mansfield, speaking of dis-
seisin, the opposite of seisin, says:
T)isseisin was a complicated fact,
and differed from dispossession of
the freeholder. A disseisor differed
from a possessor by wrong, and he
terms the latter intrusion, because
there is no disseisin, and this, even
though the owner was entirely out
of possession; and after explaining
the Origin and nature of it, he says:
“The precise definition was once well
known, but is not now (1757) to be
found. The more we read, unless we
are very careful to distinguish, the
more shall we be confounded.” Tay-
lor v. Horde, 1 Burr. 110. See post,
IPrescription.
2 Washb. Easem., 6.
3 Freehold, i. e., liberum, tene-
nentum, the land of a free tenant, a
freeholder. Bradford v. State, 15
Ind. 357. So it is still called in plead-
ing. Andrews' Steph. Pl. 351.
4The highest interest then con-
templated was the right to use and
take the profits. See 2 Cooley's Blk.
(4th ed.) 105, note. But it was a
certain absolute estate and could not
be disturbed by the lord except
by forfeiture for cause. Bradford v.
State, 15 Ind. 357; Warvelle, Real
Prop. 24, note 1.
§ 634.] THINGS REAL. 977
A freehold estate is an estate for the owner's own life, or
for the life of another (pur auter vie), or any larger estate; for
example, an estate tail or a fee simple. Any estate which is of
Żndefinite duration, and by possibility may last for life, is a free-
hold;" as an estate to a widow during her widowhood, or an
estate for so long as the grantee continues to live in a certain
house, or until promotion, or any uncertain time, is a life estate
determinable.” :
ESTATES LESS THAN FREEHOLD.—Tess than a freehold estate
embraces all other possessory interests, even though the dura-
tion, being fixed and certain, may extend beyond the possibility
of a human life. An estate, though it run a hundred or a thou-
Sand years, was and is still of less dignity than a freehold. The
relation is necessarily a holding from the owner of the larger
estate. It may be a possessory right constituting the relation
Of landlord and tenant; an interest called a chattel real; * or it
may be a mere right in, through or over land without posses-
sion; that is, the so-called incorporeal estate.”
In parceling Out interests a sovereign might give to his lesser
Vassals or servants these interests less in dignity, and the free-
holder could also grant to his retainers these chattel interests
without let or hindrance from his lord, because they affected
not the inheritance. None of the estates encroached upon the
domain of the directum dominium.
As the terms import, the holders of such estates were vil-
leins, and in time these villein holdings ripened into copyhold
tenures.”
1 Graves’ Summary of R. P. 12; treated as personal estates. 2 Blk.
Wyatt v. Larimer, etc. Irr. Co., 18
Colo. 298; 36 Am. St. Rep. 280.
Professor Graves says: “Under this
definition, estates at will and by suf-
ferance are to be excepted, as they
are certainly not estates of freehold,
being scarcely regarded, because of
their precarious character, as estates
at all; and estates by statute-mer-
Chant, statute-staple and elegit (see 2
Cooley's Blk. (4th ed.) 161, note), are
also to be excepted, because they are
merely securities for debts; and, as
they pass with the debts to the
personal representatives, they are
Com. 162.
2 Reg. v. Gov., 6 Ad. & El. 699.
“A mortgage debt is treated as an
interest in land of a personal nature
in a court of equity, but at law the
estate of a mortgagee in fee simple is
real estate, and passes to the mort-
gagee's heirs. Williams, Real Prop.
421.” Id., 12, 13.
3 Williams, Real Prop. 413; 2 Blk.
Com. 121; Averill v. Taylor, 8 N. Y. 44.
4 Easements may be freehold or
less according to duration. Washb.
on Easements, 6.
52 Cooley's Blk, (4th ed.) 96.
978 º TEIINGS REAL. [$635.
These estates of freehold and those less than a freehold are
respectively divided into classes as pointed out in the outline.
These will be mentioned in their order."
SEC. 635. Of Freehold Estates.— Fee or feud originally sig-
nified land held in tenure, as distinguished from an estate in
lands either allodial or feudal;” but when the custom of allow-
ing alienation ripened into a right, the interest of the tenant
was called an estate, and the fee became a qualifying word
indicating the character of possession and the duration of the
estate;” and now the word “fee '' expresses that genus of es-
tates which are of inheritance,” and alienable.” -
FEE SIMPLE, and fee-simple absolute, are at the present day
interchangeable terms, and indicate that the complete owner-
ship is vested in a single owner (though the number of ten-
ants may be more than one). The word “simple” was for-
merly used in the sense of pure, and a fee simple was one
which was not restricted in its descent to any heirs in particu-
lar, as were conditional fees, but signified that the estate would
descend to the legal heirs general without qualification.
All interests in real estate are carved out of this greater es-
tate, and may, by subsequent mutations of surrender, forfeiture,
release and merger, ultimately resolve themselves into it.
It follows that there cannot be two fees, or a fee and any
other estate, in the same subject. But a fee may relate to less
than the whole land."
A base or qualifted fee is one which by the terms of the grant
may last forever, or may determine or become absolute because
of some event mentioned in the grant. The possibility of con-
tinuing forever gives it the character of a fee, while the possibil-
ity that it may end debases it below the dignity of a fee simple."
The subject falls within the view of estates with reference to
the certainty of continuance.”
ESTATES FOR LIFE.-An estate for life is the least freehold
which can exist, and has been defined.
1 See Williams, Real Prop. 413. Henderson v. Horner, 52 N. E. Rep.
2 De Peyster v. Michael, 6 N. Y. 497. 68.
One having this right was an owner; 6 Amte, p. 959. Estate tail, if al-
one not having it could be no more lowed, would be treated here. It has
than a tenant. Id. been sufficiently mentioned above.
3 Id.; 2 Cooley's Blk. (4th ed.) 106. Page 974.
4 Co. Lit. 1a, note; 2 Blk. Com. 106. 74 Kent Com. 9.
5 De Peyster v. Michael, supra; 8 Post, sec. 639.
§ 635.] THINGS REAL. 979
Where the terms of the grant are doubtful, the estate will be
construed to be for the life of the grantee, rather than for the
life of the grantor."
Alienation.— The tenant for life has the full use and enjoy-
ment of the estate, and the rents and profits accruing from it.
In the grant under which he holds the estate there may be a
condition restraining his right of alienation,” but if there is not,
he may alienate his whole interest or any estate less than his
own.” Should he attempt to convey a greater interest than he
possesses, the conveyance will take effect to the extent of his
estate, but will be void as to the excess.”
Duties of Zife Tenant.—The rights and duties of a life ten-
ant are so regulated as to give him the most beneficial use of
the estate consistent with its preservation for the remainder-
man, but he takes it with such burdens as should be equitably
borne by one having a permanent interest. He must make Ordi-
nary repairs;" he may make permanent improvements; and in
cases where from the nature of the case repairs of a permanent
kind are reasonably necessary to preserve the estate, he has a
right to an allowance out of the remainder for a part."
He
must pay taxes," and interest on incumbrances° to the extent of
the value of the use.
Pſis duty is to preserve the estate,” and he must not destroy
12 Blk. Com. 121. A peculiarity of
the estate pur auter vie may be no-
ticed. It is generally done away with
by statute. If during his life he has
parted with the estate, his grantee
continues to hold. If, on the other
hand, he dies in possession, the com-
mon law permitted the first taker to
hold it under the appellation of gen-
eral occupant; but if the grant was to
One and his heirs, these heirs would
take the portion of the estate undis-
posed of as special occupants, 2 Blk.
Com. 259; 1 Washb. R. P. 93, 94; 3 id.
51; Atkinson v. Baker, 4 T. R. 229.
2 Hayward v. Kinney, 84 Mich. 521.
3 Roseboom v. Van Vechten, 15
Towa, 414; Jackson v. Van Hoesen, 4
Cow. 325.
4 Rogers v. Moore, 11 Conn. 553;
Dennett v. Dennett, 40 N. H. 505.
5 CalderScott v. Brown, 2 Hare, 145.
6 Hancox v. Meeker, 95 N. Y. 528;
Dobson v. Eldridge, 103 N. Y. 351.
7 Pike v. Wassell, 94 U. S. 714;
Varney v. Stephens, 22 Me. 334;
Prettyman v. Walston, 34 Ill. 175.
If the assessment, however, should
be made for some purpose that is of
permanent benefit to the inheritance,
the taxes would probably be appor-
tioned by the court. Cairns v. Cha-
bert, 3 Edw. Ch. 313.
8 Doan v. Doan, 46 Vt. 458.
9 Negligence in this respect may
constitute waste. Sherrill v. Con-
nor, 107 N. C. 543; Cooley, Elem. of
Torts, 123. The duty of the tenant
to protect the estate against waste
and decay extends to protection
against acts of trespassers. Cook v.
Champlain, etc. Co., 1 Den. 91.
980 THINGS REAL. [$ 635.
the improvements, or improperly' or improvidently use the
natural products so as to impair the inheritance, or he will be
guilty of —
TWaste.”—BIe may take of these reasonable estovers to repair
buildings, implements, make fences and for fuel,” to an extent
reasonable under the circumstances; in short, his rights and
duties are correlative and must have due regard to the rights
of others in the land.
JEmblements.-The doctrine of emblements is applicable to
all tenancies, also between administrator and heir." It signi-
fies the growing crops remaining unharvested at the end of
the term.
Crops, as well as grass and trees, are realty,” and therefore
anciently such as remained unharvested at the end of the term
were lost to the tenant.
To remedy this injustice the doctrine of emblements was in-
troduced. It proceeds on the idea that the tenant is entitled
to gather his crops, even though his term has expired. By this
doctrine they are “subject to many, though not all, the inci-
dents attending personal chattels.” "
A distinction exists between fructus naturales (natural prod-
ucts—fruit, herbs, grass, etc.) and fructus industriales (the
fruit of annual planting)."
ESTATES RESULTING FROM MARRIAGE.”— Estate Jure Ua'oris.”
Dy marriage, at common law, the husband obtained, unless re-
1 The removal of manure may be
waste. Hill v. De Rochemont, 48
N. H. 87.
2 Id.; King v. Miller, 99 N. C. 583.
To make over a stable into a dwell-
ing-house, or vice versa, would be
waste. Huntley v. Russell, 13 Ohio
St. 572. So it would be to excavate
farming lands in search for minerals.
Williamson v. Jones, 39 W. Va. 231;
25 L. R. A. 222.
8 Hubbard v. Shaw, 12 Allen, 122;
2 Cooley's Blk. 35.
4 The crops go to the administrator;
the natural products, fruit, etc., go
to the heir. Graves' Summary, 15.
So, if the owner in fee plants crops
and thereafter sells or devises the .
lands without reservation, the crops
pass to the purchaser. Dennet v. Hop-
heimer, 63 Me. 350; 18 Am. Rep. 227;
Bradner v. Faulkner, 34 N. Y. 347.
5 Bagley v. C. S. Ry. Co., 98 Ga. 626;
34 L. R. A. 286.
6 But not entirely so. The statu-
tory laws must be consulted as to
liability to seizure on execution, etc.
7 A valuable discussion of the law
on this subject will be found in Bag-
ley v. Col. So, Car Co., 98 Ga. 626; 34
L. R. A. 286.
8 See estate by entirety, which re-
sults from the marriage relation, but
also falls within estates considered
9In the right of the wife.
§ 635.] THINGS REAL. 981
strained by an ante-nuptial agreement, almost complete con-
trol over the beneficial use of the wife’s land. He could do
almost anything with it except dispose of it, or permanently
injure the inheritance.
During Marriage.—He was really a life tenant in possession
and control for her life, with the further estate of curtesy after
her death, which she could not impair without his consent.”
This is greatly changed by modern statutes called Married
Woman’s Acts, which, although they do not affect the estate
of curtesy, practically destroy the husband’s estate jure waoris.”
Curtesy.—An estate by the “curtesy of England ” was a com-
plete freehold estate for the life of the husband in the wife's
land after her decease.*
This estate, formerly soimportant, has been abolished in many
states, and modified in others in such a manner as to put the
man and woman on a more equal plane, but it is not every-
where abolished.”
To create this estate four things are essential to vest it. Under
the modern married woman’s acts the fourth may be necessary.
JFirst. A legal marriage. Second. Seizin in fact or in law by
the wife of an estate of inheritance. Third. Birth during mar-
riage of issue born alive capable of inheriting.” Fourth. Death
of the wife during marriage."
These need not all exist at the same time. Seizin of the wife
need not be concurrent with the life of the child, but may either
precede or follow it.” ..
Seizin, was an essential strongly insisted upon by the com-
mon law, but since the abolition of livery of seizin, seizin in
with relation to the number and con-
nection of tenants. The common-law
rights dependent on the marriage re-
lation are not taken away except by
statute. See Hatfield v. Sneden, 54
N. Y. 280; Denny v. McCabe, 35 Ohio
St. 576; Commonwealth v. Diredow,
169 Pa. St. 116.
1 Amte, sec. 554; Stroeb v. Fehl, 22
Wis. 337. -
2 Hatfield v. Sneden, 34 N. Y. 280,
valuable notes to this case, Weed-Par-
son edition; Nichol v. Tomlinson, 27
W. Va. 706. See amte, Sec. 556 and
Gnote.
8 Cooper v. Cooper, 76 Ill. 57; Hard-
ing v. Harlingen, 7 Ohio St. 208.
4 Bouvier's Law Dict, tit. Curtesy:
1 Blk. Com. 126.
5 Wolf v. Wolf, 67 III. 55. See
Williams, R. P. (Hutchins’ Ed.) 375,
note.
62 Cooley's Blk. (4th ed.) 128, note 2;
Marsellis v. Thalhimer, 2 Paige, 235.
7 Before death he held a vested
beneficial right. Death gave him a
seizin of a life estate. The modern
acts may modify the technical rela-
tion. See Lucas v. Lucas, 103 Ill. 121.
8Comer v. Chamberlain, 6 Allen, 166.
982 THINGS REAL. [$ 635.
law, by which is meant a present right to possession, is suffi-
cient."
Actual possession is unnecessary unless there is an adverse
claimant, in which case the possession must be regained during
coverture.”
As to lands held in common, possession of her co-tenant is
sufficient.” But not so as to joint tenants or partnership land,
unless by statute, because of the jus accrescend."
After issue born the estate of the husband is called an estate
Żnitiate. By the death of the wife the estate becomes consum-
mate.
Curtesy in Trust Property.— Before the statute of uses there
could not be dower or curtesy in land held to a use; nor in
the land of a trustee, because such trustee was not seized of an
inheritance;" nor in favor of the wife (or husband) of a cestuº
gue use, because there was no seizin at all. That statute, how-
ever, in many cases, converted a use into a legal estate;" and
there may be curtesy in an estate held in trust for the wife, as
there may be an equity of redemption."
As to land granted to one for the use of a wife, her husband
is entitled to curtesy unless it appears to be the express inten-
tion of the settler to exclude him.”
Curtesy cannot be had in estates in reversion or remainder
unless the attendant particular estate be determined during
COverture.”
Curtesy is a certain and determinate interest, the value of
which is easily ascertainable."
1 Davis v. Mason, 1 Pet. 503; Chew
v. Com., 5 Rawle, 160; Mercer's Les-
sees v. Selden, 1 How. 57; Borland’s
Lessees v. Marshall, 2 Ohio St. 508;
Martin v. Traill, 142 Mo. 85; Mettler
v. Miller, 129 Ill. 630. This is not
universally true. Carpenter v. Gar-
rett, 75 Va. 129.
2 Jackson v. Beekman, 8 Johns. 262;
Graves’ Summary, 196.
3 Rhodes v. Robie, 9 App. D. C. 305.
4 Graves' Summary, 196; ante,
p. 829.
51 Washb. R. P. 177, citing Chew
v. Com., 5 Rawle, 160.
6 Shackelton v. Sebree, 86 Ill. 616.
7 Mettler v. Miller, 129 III. 630.
8 So in equitable estates of the wife,
the husband may have curtesy (Og-
den v. Ogden, 60 Ark. 70, 40 Am. St.
Rep. 151), as an equity of redemption.
Mettler v. Miller, 129 Ill. 630; Pool v.
Blackie, 53 Ill. 495, an example where
such was held to be clearly the in-
tention of the grantor.
9 Stoddard v. Gibbs, 1 Sumn. 263;
Watkins v. Thornton, 11 Ohio St.
367; Ferguson v. Tweedy, 43 N. Y.
543; Martin v. Traill, 142 Mo. 85.
10 Lessee of Canby v. Porter, 12 Ohio.
St. 81.
§ 635.] THINGS REAL. 983
How the Estate May be Defeated.— The husband will lose his
interest by divorce, or by accepting a testamentary provision
in lieu thereof;” or he may release his interest by joining his
wife in a deed or mortgage.” Non-claim for the period of the
statute of limitation will no doubt constitute a bar.
JDower.—Dower was the life interest which a surviving wife
took at common law in lands of which her husband was seized
during coverture of an estate of inheritance.” It was the bene-
ficial use of one-third.”
Of the Several Species.—Dower by the common law is the
only species which it is necessary that we should treat, it being
the only kind which has ever existed in this country."
Essentials.--Two things must concur before the right of
dower will attach, namely: a legal marriage" and seizin of
the husband.” The death of the husband consummates the right.
Ascertainment by technical assignment or setting apart vests
it as an estate.”
Seleºn.— The wife is not entitled to dower unless the hus-
band during coverture was seized of an estate of inheritance for
his sole use and benefit."
in expectancy or remainder."
1 Wheeler v. Hotchkiss, 10 Conn.
225; Hahn v. Beslor, 132 Pa. St. 242.
2M’Kee's Lessee v. Pfout, 3 Dall.
486.
3 Hayden v. Pierce, 165 Mass. 359.
4 Sisk v. Smith, 1 Gilm. 503, is a
very instructive case containing a
large proportion of the ancient learn-
ing on this estate.
5 It has been abolished in Colorado,
Kansas and Washington. Holladay
v. Bailey, 1 Colo. 460; Chapman v.
Chapman, 48 Kan. 638; Hamilton v.
IHirsch, 2 Wash. Ter. 223. In other
states other interests have been sub-
stituted for it; as in California, where
a wife takes a half interest in the
common property. Beard v. Knox,
5 Cal. 252; 63 Am. Dec. 125. In sev-
eral states the wife takes dower only
in those lands of which the husband
dies seized. Flowers v. Flowers, 89
Ga. 632; Atwater v. Butler, 9 Baxt.
His estate must be in possession, not
She is not entitled to dower in
6 For these, see 2 Blk. Com, 128 et
Seq. -
7 Cropsey v. Ogden, 11 N. Y. 228;
Jenkins v. Jenkins, 2 Dana, 102; 26
Am. Dec. 437. A voidable marriage,
if not set aside during husband’s life,
will do. Bonham v. Badgley, 7 Ill.
622.
8 An inchoate right of dower then
attaches to all land seized. Suther-
land v. Sutherland, supra.
9 Sisk v. Smith, supra. Assignment
is here used in a sense differing from
a transfer. See Law Dictionaries.
10 Owen v. Robbins, 19 Ill. 545;
IRands v. Kendall, 15 Ohio, 671;
Phelps v. Phelps, 143 N. Y. 197. Es-
tates in reversion and remainder are:
not within the rule. Kellett v. Shep-
herd, 139 Ill. 433; Powers v. Jackson,
57 N. Y. 654,
11 Clark v. Clark, 84 Hun, 262.
299,
984. THINGS REAL. [$ 635.
lands held by her husband in trust' or in partnership,” nor in
lands held jointly. The possibility of the estate being defeated
by survivorship defeats dower.”
When the seizin of the husband is accompanied at its incep-
tion with a lien, mortgage or judgment, the inchoate right of
dower of the wife attaches in subordination to such lien, and
if the land is sold in compliance with the forms of law to satisfy
such lien the dower is gone, unless the sale be made after the
death of the husband, in which case, if there be a surplus, the
widow may claim dower in that.”
The duration of seizin, provided it is complete and unaffected
by a simultaneous right, is not material.” It is not the duration
but the nature of the seizin" which is important; but seizin in
law is sufficient." The possession of the tenant for a term of
years is counted the possession of the reversioner. Possession
under claim of ownership is prima facie sufficient.”
JDeath of the Husband.—During the life-time of her husband
her interest is a mere inchoate right, valuable and distinguish-
able, but it does not west until the death of the husband.” The
inchoate right is entitled to protection, and the wife will re-
ceive the aid of equity in setting aside a deed executed by the
husband and One personating the wife, and purporting to re-
lease the dower; " but until the interest is ascertained and set
apart it is not an estate in land, but a right in expectancy." It
may be released so as to bar the right of asserting it against
the owner of the fee, but it cannot be invested in any one not
interested in the fee. Only the person entitled to dower under
the law can have it assigned.”
When assigned her title relates back to the date of seizin,
1 King v. Bushnell, 121 Ill. 656; Hal- 4 Seibert v. Todd, 31 S.C. 206; 4 L.
lett v. Parker, 39 Atl. Rep. 583. R. A. 606.
2 Maybury v. Brien, 15 Pet. 21. In 52 Cooley's Blk. (4th ed.) 131, notes;
those states where the right of sur- Stowev. Tifft, 15 Johns. 462; Hugunin
vivorship in estates held in joint v. Cochrane, 51 Ill. 302.
tenancy is abolished, there is no rea- 6 King v. Stetson, 11 Allen, 408.
son why dower should not attach. 7 Atwood v. Atwood, 22 Pick. 283.
See Miles v. Fisher, 10 Ohio, 1; 36 Am. 8 Gordon v. Dickinson, 154 Ill, 78.
Dec. 61. - 9 McArthur v. Franklin, 16 Ohio
*Trowbridge v. Cross, 117 Ill, 109. St. 193; Sisk v. Smith, supra.
Cf. Simpson v. Leech, 86 Ill. 286. 10 Clifford v. Kampfe, 147 N. Y. 383.
After partnership debts paid. 11 Sisk v. Smith, supra.
- 12 Best v. Jenks, 123 Ill. 447.
§ 635.] THINGS REAL. 985,
but not beyond the date of marriage." It is the duty of the
heirs to formally assign it.
JDower may be divested by divorce,” by her own deed of re-
lease according to the forms of law,” by estoppel,“ by non-claim
for the period of the statute of limitation,” by accepting pro-
visions in her husband's will in lieu of dower,” and also by
eminent domain."
Community property prevailed among the Spanish colonists
in America and is based on their laws.”
Under this law there is equal ownership between man and
wife of all property acquired by their energy or thrift during
coverture” and while living together."
Statutes regulate what is to be considered as separate prop-
erty of the husband or wife, and then declares that all prop-
erty held by them shall be considered community property."
In some features it resembles a partnership, in others it is
essentially different.”
Community of property will not exist unless there has been
a valid marriage celebrated with the statutory formalities.”
FIoMESTEAD ExEMPTIONs are founded on the family relation,
but not necessarily on marriage or kinship. Homestead laws
are construed either as conferring a mere ea emption or as creat-
ing a freehold estate.
The distinction is of great importance
as to rights of creditors and modes of transfer.”
1 Lawrence v. Brown, 5 N. Y. 394;
McArthur v. Franklin, supra.
2 Barrett v. Frailing, 111 U. S. 523.
8 But this must be in strict accord
as to formalities of acknowledgment,
etc. Mettler v. Miller, 129 Ill. 630 Vir-
ginia Coal Co. v. Roberson, 88 Va. 116.
4 Lawrence v. Brown, 5 N. Y. 394.
* Tiedeman, R. P., sec. 131.
6IConvalinka v. Schlegel, 104 N. Y.
#25. But to constitute such an elec-
tion it is necessary to show that the
wife understood the facts of the case.
Cowdrey v. Hitchcock, 103 Ill. 262.
7 Tiedeman, R. P., sec. 132. See for
the common-law modes, Sisk v.
Smith, supra.
8 As to the origin, see Cole v. Ex-
ecutors, 7 Mart. (N. S.) 41; 18 Am.
Dec. 241. It prevails to some extent
in Arizona, California, Idaho, Louisi-
ana, New Mexico, Nevada, Texas and
Washington.
9 Wren v. Wren, 100 Cal. 276; 38
Am. St. Rep. 287.
10 Lovering v. Stuart, 79 Cal. 200.
Il Tanner v. Robert, 5 Mart. (N. S.)
255; Stockstill v. Bart, 4.7 Fed. Rep.
231.
12 Wheat v. Owens, 15 Tex. 242; 65
Am. Dec. 164. See also Gulf R. R.
Co. v. Goldman, 87 Tex. 567; Holyoke
v. Jackson, 5 Wash. Ter. 239. See
Stockdall v. Bartlet, 4 Wash. 730.
13 Stans v. Bailey, 9 Wash. 115; Sum-
erlin v. Livingston, 15 La. Ann. 519.
14 Gray v. Schofield, 175 Ill, 36.
986 THINGS REAL. [š 635.
Object of Iſomestead Laws.-The homestead is the family
residence, owned and occupied as such, and, the law affixes to it
certain characteristics in order that the family relation may not
be suddenly and rudely broken up by mendacity, misfortune or
death. The beneficent provisions of the law apply only to an
actual bona fide home." It is not a means to evade creditors,
but to shelter a family. It is not meant merely to benefit a
debtor; accordingly his mala fide acts cannot defeat the purpose
of the law, which rests on a broad public policy to preserve the
integrity of the basis of society.” It was unknown to the com-
mon law, and the law of each state depends upon the provis-
ions and construction of its statute law.”
The occupancy must be actual, but temporary absence is al-
lowable, so long as a bona fide intention to retain the home
remains.
As in curtesy and dower, the land must be that of the claim-
ant; but the question of seizin does not arise, occupancy being
an essential requisite.
Partnership property will not sustain a homestead,” but prop-
erty held in common will.” -
The Family.— Generally, under the statutes, any one who is
the “head of a family” may claim a homestead."
What will constitute a family or the head is a mixed ques-
tion of law and fact, and it will not do to say that the family
must be related by marriage or blood; but in the case of a male
claimant there should be either kinship or a mutual depend-
ence, or the head must have the duty of support. A widow
keeping boarders with servants, and who has kept up the es-
tablishment, is the head of a family.”
Homestead laws, being designed to prevent the breaking up
of families, are to be liberally construed.”
. . .
.*.*.*
1 Evans v. G. R. Co., 68 Mich. 602;
Backus v. Chapman, 111 Mass. 386;
Lamb v. Mason, 50 Vt. 350; Jacoby
v. Dist. Co., 41 Minn. 227; Lubbock
v. McMann, 82 Cal. 228; First Nat.
Bank V. Hollinsworth, 78 Iowa, 575.
2 Lies v. De Diablar, 12 Cal. 328;
Good v. Fogg, 61 Ill. 450.
3 Hotchkiss v. Brooks, 93 Ill. 386;
Carrier v. Sutherland, 54 N. H. 475.
4 Trowbridge v. Cross, 117 Ill. 109.
5 Capek v. Kropik, 129 Ill. 518.
6 Armstrong's Estate, 80 Cal. 71; Sil-
loway v. Brown, 12 Allen, 34; Foun-
tain v. Hendley, 82 Ga. 616.
7 Tiedeman, R. P., Sec. 160; Whaley
v. Cadman, 11 Iowa, 226; Blackwell
v. Broughton, 50 Ga. 390.
8 Race v. Oldridge, 90 Ill, 250.
9 When claiming a homestead he
need only in his declaration allege
that he is the head of a family, and
§ 635.] THINGS REAL. 98.7
Primarily the husband is the head of a family while resid.
ing with the same, but the object of solicitude is the family,
and the letter of the law must not be allowed to defeat the
spirit of it, and to effectuate the intention the wife may be the
head."
Is an Estate.—The homestead is not subject to liens of judg-
ments, that is, the lien does not attach to the homestead nor
to the tract in which it is claimed until the extent of the home-
stead is ascertained; therefore a sale without setting it off is
void, and a transfer of the tract before setting off passes it clear
of the lien of an existing judgment.” \ *
The homestead is largely controlled by the head of the fam-
ily, but not entirely, so there is a sort of joint tenure in the
estate between members of the family;” and the statutes gener-
ally provide for the procedure in case the head of the family is
absent or unwilling or unable to act. -
The Zºetent of the Eeemption.— The first principle is the con-
stitutional one that a wested right cannot be entirely taken
away, even under the guise of an exemption law,” and in gen-
eral there is no exemption against taxes,” purchase-money and
pre existing liens, and debts contracted before the statute allow-
ing the homestead." -
Alienation.— The homestead right may be conveyed by an
instrument executed in strict compliance with the requirements
of the law for such instruments" in which the wife joins.”
A mortgage is equally as effective in favor of the mortgagee,
but does not avail other creditors, and the value of the home-
stead may be claimed out of the surplus of sale, and equity will
treat it as though it were realty.”
need not set out the grounds on which
he claims to be such head until his
right is disputed. Jones v. Waddy,
66 Cal. 457; Race v. Oldridge, 90 Ill.
252.
1 Loeb v. McMahon, 89 Ill. 487; Sav-
ings Bank v. Evans, 28 S. C. 521;
Dunn v. Bulkley, 56 Wis. 192; Lin-
auder v. Longstaff, 7 S. Dak. 157.
2 Gray v. Schofield, 175 Ill. 36; Nich-
ols v. Spremont, 111 Ill. 631.
8 Barber v. Bold, 36 Cal. 11. -
4 Bronson v. Kinzie, 1 How. 31.1;
Edwards v. Kearzey, 96 U. S. 595.
5 Hayes v. Taylor, 43 S. W. Rep. 314.
6 Cooley, Const. Tim. 348; Edwards
v. Kearzey, supra; Homestead Cases,
22 Gratt. 266. As to what is purchase-
money, see Williams v. Jones, 100 Ill.
362.
7 Wheeler v. Gage, 129 Ill. 197; Am.
Sav. & Loan Ass’n v. Burghardt, 19
Mont, 393.
8 Kitchell v. Burgwin, 21 Ill. 44;
Chopin v. Runte, 75 Wis. 361; Riggs
v. Sterling, 60 Mich. 643. .
9 First Nat. Bank v. Briggs, 22 III,
App. 228; Jones On Mort., § 1613.
988. THINGS REAL. [$ 636.
Abandonment will extinguish the right or estate, but will not
transfer it to a purchaser of the fee so as to cut off creditors."
SEC. 636. Estates Less than Freehold — Landlord and Ten-
ant.— The estate next in dignity to a freehold, regarded either
as to its duration or the character of possession, is known in
law and in common speech as a tenancy.” -
A Lease.—Creation of the relation (except in tenancies by
sufferance) is accomplished by a grant of the use and occupation,
for a particular period for a rent reserved.
A contract providing for a leasing will be held to be a lease,
whatever its form, when it expresses a present intention to
grant the use and possession, and there is no indication in
the writing itself, or in the conduct of the parties, that any
other or more formal instrument was intended to be made.”
Until the lessee executes the lease by taking possession he
has a mere right to enter, known technically as interesse terminº,
(an interest in the term).”
All leasings contemplate a superior ownership of a greater
estate by the lessor.
There is a reciprocal rule which prevents the question of
ownership or title arising as an excuse from the consequences
of a violation of his obligation by either, viz.: It is not allow-
able for the tenant to deny his landlord’s title, nor for the land-
lord to deny his ownership.”
The Possession.— The tenant has a possession, but it is a
qualified possession for a specific purpose, reserving to the
landlord the seizin.” For an injury which affects the reversion
the landlord is the real party in interest, even though the ten-
ant is in possession, and only he can sue; while the tenant can
only sue for the injury to that which is his, and for an injury
to the possession only he can sue."
1 Gray v. Schofield, 175 Ill. 36.
Neither forced absence (Leake v.
Ring, 85 Mo. 413) nor temporary ab-
sence with the intention of return-
ing. Walters v. People, 18 Ill., 194;
"Wilbanks v. Untriner, 98 Ga. 801;
Barker v. Dayton, 28 Wis. 367. As
to what will constitute, see Brokaw
v. Ogle, 170 Ill. 113.
* In the early days of feudalism the
Owner was lord parramowºut la
terre —lord over the land.
3 Shaw v. Farnsworth, 108 Mass.
357; Huntington v. Parkhurst, 87
Mich. 38; 24 Am. St. Rep. 146.
4 Illinois Starch Co. v. Ottawa Hy-
draulic Co., 125 Ill. 237. *
5 Lindsey v. Leighton, 150 Mass.
285; 15 Am. St. Rep. 199.
62 Cooley's Blk. (4th ed.) 142.
7 Brainard v. Burton, 5 Vt. 97; Gaz-
zola v. Chambers, 73 Ill. 75; Field v.
Herrick, 101 Ill. 110. The landlord
may by unlawful entry be a tres-
§ 636.] Thisos Real. 989
A perpetual leasehold, i. e., one for a long term renewable
forever, does not give such seizin as will support dower."
Rent.—The rent which is paid to a landlord by a tenant
differs from the other species of rent to be hereafter noticed.*
It was formerly regarded as a reservation out of the profits
which those menial bailiffs or farmers” were expected to make
from the use of the land; * but in modern times only leases ex-
pressly reserving such a share have the ancient features. A
pure leasing must be for a certain rent payable at a fixed time
for a definite period,” for the use.” This is the rent service
of the law," and the only species of rent which contemplates
the relation of landlord and tenant.” #
The performance of the covenant to pay rent may properly
be secured by a condition of forfeiture of the term,” or a right
of entry," and enforced by a summary proceeding known as
distress for rent.
A cropper, i. e., one working land. On shares, is not a tenant
unless he has a demise of the land entitling him to possession.”
IHe does not have title to the crop until division of it.” Until
then the owner and the cropper are tenants in common of the
crop;” only the owner has possession and legal title; * but rent
as such may be paid in a share of the crop.” -
Apportionment of Rent.—At common law a contract for the
payment of rent periodically was not to be apportioned during
the periods.” Where there was a lease for a year's rent, to be
paid at fixed periods, if the lessor died between the periods his
representative could not collect the rent accruing after the last
passer. See Keegan v. Kinnare, 123 8 Id.
Ill. 280–287.
1 Abbott v. Bosworth, 2 Bull. 92;
affirmed, 36 Ohio St. 605. See Tay-
lor V. De Buss, 31 id. 468.
2 Post, p. 995.
8 Supra; 2 Cooley's Blk, (4th ed.)
142.
42 Cooley's Blk. (4th ed.) 41 and
Inotes.
5 Valentine v. Jackson, 9 Wend.
302; Hatfield v. Tullerton, 24 Ill. 278.
61 Benj. Real Prop. 535.
7 See 2 Cooley's Blk. (4th ed.) 41
and note.
9 New York cases ante.
10 Merwin's Eq. 221 et seq.
11 He may even commit a trespass
on the land. Warner v. Hoisington,
42 Vt. 94.
12 Moulton v. Robinson, 27 N. H.
550; Ladd v. Robinson, id.
13 Walker v. Fitts, 24 Pick. 191;
De Mott v. Hagerman, 5 Cow. 220;
18 Am. T)ec. 443.
14 Chase v. McDonnell, 24 Ill. 239.
15 Taylor, Land. & T., sec. 25; Dixon
v. Niccols, 39 III. 384.
16 Dexter v. Phillips, 121 Mass. 178.
$990 THINGS REAL.
[$ 636.
pay day." This hard rule has been very generally abrogated
by statute.”
TENANCY FOR YEARS is one having a certain definite begin-
ning or commencement, and a certain definite period of termi-
nation.” Because its duration is absolutely defined, it is called
a term.* *
TENANCY AT WILL is one whose duration depends upon the
pleasure of the parties, and either party may determine it. It
is absolutely uncertain in duration.” It usually occurs by
some mischance, but may arise by agreement; and being de-
terminable at the will of either party, the law requires notice
of the intention to terminate it." +
Where an estate for years is granted by a lease, inoperative
for any reason, e.g., being in contravention of the statute of
frauds, the estate is held to be one at will;" but if entry is
made under an agreement providing for a yearly rental, and
payment is made, such a lease will be regarded as a tenancy
from year to year.” .
A TENANCY AT SUFFERANCE differs from a tenancy at will, not
in the quality of its uncertainty of duration, but in the fact
that it does not arise from an original contract, but from a hold-
ing over without authority after the expiration of an original
leasing for a term or for years. The tenant holding over with-
out the consent of the landlord, after his right to hold under
the Original contract is terminated, is a tenant at sufferance.”
12 Blk. Com. 124. On a Covenant
to pay rent, appended to a lease,
which did not mention heirs, execu-
tors, administrators or assigns, it
was held in Walsh v. Pickard, 165
Mass. 189; 40 L. R. A. 321, that the
rent belonged to the administrator.
2 Williams on Real Prop. 27.
3 Watkins on Conv. 11.
rmay, however, attach to it a condi-
tion which may terminate it, but its
11tmost bound must be fixed.
4 The requirement of this rule will
be fulfilled if the lease contains the
means of making the duration of the
term certain. Brown v. Bragg, 22
Ind. 122; Shaw v. Hoffman, 25 Mich.
162.
This term
5 The fact that it is uncertain is
the reason for requiring notice to
quit.
6 But where a tenant at will denies
title of his landlord and asserts ad-
verse title, no notice is necessary. Ap-
pleton v. Ames, 150 Mass. 34; 5 L. R.
A. 206.
7 Talamo v. Spitzmiller, 120 N. Y.
37; 17 Am. St. Rep. 607.
8 Coudert v. Cohn, 118 N. Y. 309; 16
Am. St. Rep. 761; Talamo v. Spitz-
miller, supra.
9The landlord has a right to treat
the holding over as a trespass (Mc-
Teran v. Benton, 73 Cal. 329; 2 Am.
St. Rep. 814; Smith v. Littlefield, 51
N. Y. 539), or as a renewal of the
§ 636.] THINGS REAL. 991
FROM YEAR. To YEAR is a very common method of leasing,
in fact a very convenient One. It differs from a lease at will
in this: that it is incumbent upon either party who may ter-
minate the lease to give notice of the intention to terminate a
half year before the expiration of the current year's tenancy."
Jęelative Duties of Landlord and Tenant.— After the making
of the lease the landlord is not obliged to place the tenant in
possession.” . He is not obliged to oust even his former tenants
whose term has expired,” but he is liable to a tenant who is pre-
vented from taking possession or is dispossessed by any one
under a lawful paramount right obtained from him; and the
lessee may recover not only nominal damages, but damages for
the value of the use if it exceeds the rent agreed upon, and any
other reasonable, probable, special damages.”
JDestruction of Premises.—Unless expressly stipulated, the
landlord need not repair the premises, or rebuild in case of de-
struction,” and under the common law the destruction of the
premises, though complete, was no ground for abating or ap-
portioning the rent." The doctrine of the civil law was other-
wise," and there is a growing tendency to modify the rule, which
has gone to such an extent as to mitigate much of its harsh-
lease for a year. Taylor's Land. & T.
(7th ed.), § 22 (older editions are in
error). In this edition he says: In
Massachusetts and some other New
England states where tenancies from
year to year are unknown, a tenant
holding over is said to be in merely
by sufferance; he remains a tres-
passer, and can only become a ten-
ant by mutual agreement. For an
excellent review of the subject see
Clinton Wire Cloth Co. v. Gardner,
99 Ill. 151; Haynes v. Aldrich, 133
N. Y. 287. The tenant at sufferance
is not liable for rent as such, but is
liable to respond in damages in an
action of trespass, which will be the
value of the use of the land with any
other damages, irrespective of what-
ever the premises may have been
rented for. Keegan v. Kinnare, 123
Ill. 290.
1 Williams, RealProp. (17th ed.)558–
596. This species of tenancy is not
recognized in Maine and Massachu-
setts, but all uncertain leasings are at
will. Id.
2 Field v. Herrick, 101 Ill. 110.
3 The civil-law rule was otherwise;
and in Louisiana the lessor must se-
cure to the lessee the possession, use
and enjoyment of the thing leased.
Viterbo v. Friedlander, 120 U. S. 707.
4 Cohen v. Norton, 57 Conn. 480;
Truell v. Granger, 8 N. Y. 15.
52 Cooley's Blk. (4th ed.) 145.
6 Id. But where the premises con-
sist entirely of houses or plants, or
practically so, the general rule is that
complete destruction releases the ten-
ant. Humiston et al. v. Wheeler, 175
Ill. 514. See opinion of Brewer, J.,
Whitaker v. Hawley, 25 Kan. 674, and
Wattles v. S. Omaha I. Co., 50 Neb.
251.
7 Viterbo v. Friedlander, 120 U. S.
707.
63
992
[$637.
THINGS REAL.
ness."
lord abates the rent.”
Eviction by paramount title or by the act of the land-
The duty of the tenant, aside from the payment of the rent,
is to keep the premises in reasonable repair, committing no
waste, though entitled to reasonable estowers,” and to yield up
the premises at the end of the term.
SEC. 637. Estates Considered with Reference to the Nature
of the Interest or Character of Possession are of two principal
kinds — legal and equitable estates.
The treatment which has been given of freehold and less
than freehold estates is a sufficient presentation of those estates
as well from this point of view as from their duration.
We are now to mention only those interests in land which
exist unaccompanied by a real possession, although frequently
attended with a quasi-possession or right of occupancy, and for
this reason commonly called incorporeal estates.
It is common to grant to persons interests in or issuing out.
of land without accompanying it with either seisin or exclusive
possession, but with right of occupancy sufficient to effectuate
the purpose of the grant.”
These interests include easements
or servitudes, licenses, commons, annuities, rents and franchises,
and are of such a nature as create an interest in lands.
EASEMENTS AND SERVITUDES.– An easement is a right to make
some use of land other than complete ownership, or the use of
the land for profit, or to cast some burden upon it for the benefit
of a neighboring piece of land.” In these latter cases the estate
1 See for a review of authorities,
TVWattles v. S. Omaha I. Co., supra.
* Wattles v. S. Omaha I. Co., supra;
Humiston v. Wheeler, supra.
82 Cooley's Blk. (4th ed.) 35.
4 Burnett v. Crane, 56 N. J. L. 285;
44 Am. St. Rep. 394; Herman v.
Roberts, 119 N. Y. 37.
5. It is a servitude from the point of
the person or land burdened; an ease-
ment from the other point of view.
Servitudes to Repair.—“A some-
what startling proposition in the law
of easements is laid down in the case
of Whittenton Manufacturing Co. v.
Staples, 164 Mass. 319, Field, C. J.,
FIolmes and Lathrop, J.J., dissenting,
that in consequence of payment by
owners of land for more than twenty
years of an annual sum toward the
repair of a dam situated off the prem-
ises, the land thereby becomes sub-
ject to a servitude to pay that sum
annually. The decision is based on .
the supposed analogy between the
duty to repair a dam and the duty
to repair fences and highways. A
right to compel the performance of
positive acts is known as a spurious
easement, and up to this time has
been strictly confined to three classes
of cases. The law has recognized the
right to compel the repair of fences;
repairs in connection with the enjoy-
§ 637.]
THINGS REAL. 993
having this right or privilege is called the dominant estate, and
that required to bear the burden the servient estate.
There may be a servitude upon land which is not for the spe-
cific benefit of another piece of ground, but rather for the bene-
fit of a person or persons, though they be not the owners of
any land." Thus, one may have the right to pass over land
via a public highway, or by custom or prescription a right to
fish in ponds or hunt game;” and it will be found that any per-
sonal right of this nature depends rather upon the fact that the
individual is one of a number known as a community, which
has an interest in the locality.” It is not necessary that the
servient and dominant estates should be contiguous.
Among the most common easements is the right of the dom-
inant estate to cast upon the servient one water naturally flow-
ing upon it, or coming upon it from without in the ordinary
course of drainage. This is a natural easement and servitude,”
and is everywhere modified in the interests of husbandry.”
The right of way for man or beast or for the purpose of con-
ducting water, the right to draw water from a spring or well,
the water privilege appurtenant to a mill, may all rest in favor
of one against another as an easement."
ment of an existing easement (Ryder
v. Smith, 3 T. R. 766); and repairs to
be made upon the highway by abut-
ting owners(Bac. Abr. Highways, E.).”
Erom Baltimore Daily Record.
12 Cooley's Blk. (4th ed.) 35, notes,
? Such rights are, when granted by
a private person, more properly prof-
its a prendre, i. e., a use not for con-
venience, but for gain. Bingham v.
Salene, 15 Oreg. 208. See note 3 Am.
St. Rep. 152. When granted by the
public are a franchise. Post, p. 995.
8 It is then rather in the nature of
a common or franchise.
4 The civil law required that sur-
face water should follow its course.
The common law allowed an owner
to make embankments against it.
Crawford v. Rambo, 44 Ohio St. 279.
As to streams a distinction is made,
the common law following the civil
law, that the flow must not be ma-
terially interrupted to the damage
of others (Id.), subject to reasonable
rights of user, pollution and protec-
tion. In Barkley v. Wilcox, 86 N. Y.
140, is pointed out the states follow-
ing the various rules.
5 The upper owner may, by digging
and banking, change the flow into a
natural channel, even though the
flow is increased. Martin v. Riddle,
26 Pa. St. 415; Peck v. IIerrington,
109 Ill. 611. But several channels
cannot be united. Timerick v. Turn-
pike Co., 80 Pa. St. 425.
6 See 2 Cooley's Blk. 35, note; Floyd
v. Smith, 18 Barb. 522; Sterling Hyd.
Co. v. Williams, 66 Ill. 393. In Good-
rich v. Burbank, 12 Allen, 461; 90 Am.
Dec. 161, the judge says: “The right
to take water from a well or spring
is held to be an interest in land, al-
though not a ‘profit a prendre,” and
may be claimed by custom; and we
994. THINGS REAL.
[$637.
|
A License bears a very close resemblance to an easement,
and differs from it in the fact that it does not purport to con-
vey a permanent interest, and is therefore never a freehold
estate."
A pure license, although created on consideration and allow-
ing Occupancy, and permitting improvements and erections of a
stable and enduring character, is never permanent, but is al-
ways revocable,” even though followed by great expenditure,
and therefore like an estate at will. It may be created by
parol, whereas a permanent interest in land never can be so
created.” * *
If an agreement purports to convey a permanent interest, it
Creates an easement, and is within the statute of frauds; but
when followed by possession and expenditures, the part execu-
tion takes it out of the statute, and the change in condition
creates an estoppel, and such a grant cannot be revoked. The
distinction consists in the nature of the interest intended to be
conveyed.”
COMMONs.—A right of common is a very different thing from
a tenancy in common; the estate is in a community, and the
individuals entitled to the enjoyment have no estate in the land.”
Commons were held in the original states, and in the West there
are commons tracing their origin to the Spanish and French
occupation."
A common is a mere right to use, in connection with other
persons like situated, a designated parcel of land, or some ap-
purtenant thereto, as a well, or to take fish, although if the
so-called common right to take fish is in waters belonging to
the public, and restricted to a designated class of persons, it
are aware of no case which denies
that the right to an aqueduct may
be so created as to exist independ-
ently of any particular parcel of land
Owned by the grantee thereof.”
1 Wilmington W. P. Co. v. Evans,
166 Ill. 548; Foster v. Browning, 4
R. T. 47; 67 Am. Dec. 505, note.
* Nat. S. Y. Co. v. Wiggins Co., 112
Ill. 385. Where there is no pretense
of giving a permanent interest there
is no ground for estoppel. Id. See
Party-wall Agreements; Hodgkins
v. Farrington, 150 Mass. 19; 15 Am.
St. Rep. 168. Cf. Russell v. Hubbard,
59 Ill, 335, and comment 112 Ill. 394.
3 Id.
4 See Ricker v. Kelley, 1 Greenl.
117; 10 Am. Dec. 41, note; 3 Kent,
Com. 452. See note in 31 Am. St.
Rep. 712.
5 Haps v. Hewitt, 97 Ill. 498. -
° E. g.: the old Kaskaskia common,
Trustees v. McClure, 167 Ill. 23, and
the Cahokia commons, Haps v. Hew-
itt, Swpra.
§ 637.]
THINGS REAL. 995
partakes rather of the nature of a franchise held in common
than a pure common; but it is not necessary that a commoner
be an owner of land,- his inhabitancy gives him the right."
RENTs.”—Rent as a compensation for the use of land by a
tenant passes under the technical name rent service.”
Jēent service is always payable to the owner of the land, and it
is never granted by him, but is reserved in his grant of the term.
Jęent Charge.—It was formerly common for an owner to
enter into a contract to pay a third person a fixed sum of money
designated as arising out of particular lands, and to give to him
the right of distress for the enforcement of the charge. It is
called rent because it issues out of the land, and being a charge
on the land enforceable by distress is called a rent charge.”
Jęent Seck.-It is called rent only because the agreement is
to pay it out of the profits of the land. Like a rent charge it
is granted by an owner to a stranger to the title, but it differs
from the latter in that no remedy by distress is given, and be-
cause it rests merely on contract is called rent Seck, or barren
rent.”
FRANCHISEs as a species of estate in land must be clearly dis-
tinguished from the franchise to be a corporation or the fran-
chises of corporations. In this connection it can make no
difference whether the person owning the franchise be a nat-
ural or artificial person.
It is the character of the grantor and the nature of the thing
granted in its relation to land (i.e., land or water) which classes
it as a franchise. Where the exercise of the right must rest
upon a grant from the state, and confers an interest or right to
make a profitable use of land, it may properly be termed a
franchise in land."
1 See statement of White, J., in
Davis v. Massachusetts, 167 U. S. 43–
4Id.; Watkins on Conv. 175.
5Id.; Ingersoll v. Sargent, 1 Whart.
46, and Illinois cases cited above.
2 Annwittes granted by an owner
out of the profits of land directly to
a third person are very uncommon,
and can scarcely be said to consti-
tute an interest in land because not
made a charge on land. Such an
agreement, if made a charge on an es-
tate, would be a rent seck.
3 Amte, p. 989. See 2 Blk. Com.
(4th ed.), 41, note.
359; Rensellaer v. Dennison, 35 N. Y.
393. But the right of distress has
been given by statute in all cases of
rent in England and in some of the
states, thus converting this species
into a rent charge. See Vechte v.
Brownell, 8 Paige Ch. 212; Lawy. Ed.
N. Y. Ch., vol. 4, p. 404.
6 In Price v. Price's Heirs, 6 Dana,
107, the court decided that stock in
a railroad company was real estate,
996 THINGS REAL.
[$637.
There are early cases where individual rights of this nature
have been recognized as conferring a seisin of the right in the
land." -
JRailroad rights of way are somewhat anomalous. They are
generally termed easements, because there is always impliedly
a reversion to the owner of the fee if the special use is aban-
doned. The company is given an interest and a possession
differing somewhat from an easement in this: that the railway
company is tacitly given an exclusive possession of such a nat-
ure as enables it to exclude all other occupants of the land,
even to the exclusion of the former owners of the fee if neces-
sary.”
EQUITABLE INTERESTs.--By an equitable interest is meant a
real interest in land in which the legal title to the same inter-
est is in another.
Oſses and Trusts — Origin.—It was anciently common for an
owner to grant his estate, usually by devise, to a person in whom
he had confidence, to hold the same, and use and dispose of it
in the manner which the cestuº que use, or party beneficially
interested, should direct.
The devisee or grantee in such a case was the mere repository
of the title; the beneficiary had the complete control of the
land. -
Such a transaction was termed a use. It did not confer act-
ive duties or powers upon the devisee, nor create any beneficial
rights in him.
On the same policy which now restricts the entailment of
estates or their ownership by a corporation having perpetual
succession, which amounts to the same thing, English statutes,
notably Magna Carta and the statutes of mortmain,” restricted
the right of religious bodies to
acquire lands.
and descended to the heirs, and sub-
ject to a claim of dower. The court
said: “That a franchise created by
act of incorporation unlimited in
duration, and Springing out of the
combined use of lands and person-
alty, should be denominated and
classed as real estate,” and cites 2
Blk. Com. 20, 21, 22, 37, 38. In Hol-
yoke Co. v. Lyman, 15 Wall. 500–15,
the right of fishery in unnavigable
streams is considered, and a grant
spoken of as “a franchise of a sev.
eral fishery.”
13 Washb. (5th ed.) 304. The ex-
clusive right to maintain a ferry is
a franchise and real estate. Dundy
v. Chambers, 23 Ill. 369.
3 Jackson v. R. & B. R. R., 25 Vt.
150; Conn, and Pass. Rivers R. R. Co.
v. Holton, 32 Vf. 44; Hazen v. Boston
& M. R. R. Co., 2 Gray, 580.
3 Dead hands.
§ 637.] & THINGS REAL. 99'ſ
Statute of Uses.—The device of creating a use was imme-
diately laid hold of to evade the statute. These uses, being
regarded as equitable estates, cognizable in chancery and by
the chancellor’s ecclesiastics or churchmen, the device suc-
ceeded admirably until the passage of the celebrated statute
of uses." *
Trusts Distinguished from Uses.—If taken literally, this
would have prevented the existence of trusts, but by judicial
construction the courts drew the line sharply between active
trusts and real uses, or dry passive trusts,” and also between de-
liberate conveyances or agreements intended by the parties to
create a trust, and trusts arising by operation of law out of
transactions where the circumstances rendered it fraudulent
and inequitable for one obtaining the legal title to hold it, and
out of which equity would create a trust, i. e., between eaſpress
trusts and those arising by operation of law.”
By this means is preserved to us that great branch of the law
which passes in modern times under the name of trusts.
Charitable Uses.—The law of England never intended to run
counter to the policy which encouraged rather than discour-
aged philanthropic gifts to charitable uses.
In a broad way the definition given by Mr. Binney in his
argument in the Girard will case expresses the character of a
charity: “Whatever is given for the love of God, or the love of
your neighbor in a catholic and universal sense — given from
these motives and to these ends, free from the stain or taint
of every consideration that is personal, private or selfish,” is a
charity.”
The object is better expressed by Lord Camden’s definition:
“A gift to a general public use which extends to poor as well
1The statute of uses (27 Hen. VIII., ancing. See Silverman v. Kristufek,
•ch. 10), paraphrased, provides that
where any person stands seized of
‘estates in hereditaments to the use,
confidence or trust of another, by
any means of title, in any manner
(whatsoever it be, from henceforth the
Cestwi gue wse shall stand seized of
the legal estate. This statute is gen-
erally re-enacted in the United States
with the statutes relating to convey-
162 III. 222.
2 Silverman v. Kristufek, 162 Ill.
222. -
3 See Lantry v. Lantry, 51 Ill. 458,
arguments and citations; Stark v.
Storrs, 6 Wall. 419.
4 Page 41 of argument in Vidal v.
Girard, 2 How. 128, quoted in 95 U. S.
311. For an enumeration of charities,
see Ould v. Wash. Hospital, 95 U. S.
303.
998 THINGS REAL. [$637.
as the rich, but it may be, and generally is, confined to a class
or a specific object.””
The Statute of Charitable Uses, 43 Eliz. 44, was formerly
supposed to be the basis of the validity of these charities; * but
this view has been changed, and it is now settled that this stat-
ute is purely remedial and ancillary for the better protection
of charities, which are recognized as valid independently of its
provisions.”
A TRUST DEFINED.—“A trust is a confidence reposed in some
other and not issuing out of land, but as a thing collateral an-
nexed in privity to the estate of the land and to the person
touching the land for which the cestuff que trust has no remedy
but subpoena in chancery. . . . The trust or confidence is
a thing distinguished from legal property or legal right to prop-
erty. It is neither jus in re nor jus ad rem.” It was held that
a trust is not a legal estate, but an equitable interest."
They may all be created by parol, but express trust must be
manifested, i. e., proved by a writing." The statute of frauds
applies only to express trusts.”
JFour species of trusts are clearly distinguishable by the man-
ner in which they are created or how they arise: (1) direct or
expressed trusts, (2) implied trusts, (3) resulting trusts, and
(4) constructive trusts.
The first class is created by direct words acknowledging the
trust in express terms or promises, with mere words as their
only foundation; the others all arise by operation of law on the
facts and are often spoken of as implied trusts. The three
species are clearly distinguishable from each other.
1 Jones v. Williams, Ambler, 652
(1767); Conklin v. Davis, 63 Conn. 377.
2 A college or hospital. Academy v.
Harvard College, 12 Gray, 394; Phil-
lips v. Bury, 2 T. R. 353. No great de-
gree of certainty as to the object is
required; the courts will endeavor to
carry out the intent if ascertainable.
Parish v. Trustees, 67 Conn. 554.
8 See Story’s great opinion, 3 Pet,
App'x, 483; also in Baptist Ass’n v.
Hart, 4. Wheat. 1.
4 The course of the discussion is
concisely stated in Ould v. Washing-
ton Hospital, Supra. This case is
recommended as the first decision to
read on the subject, followed by cases
on page 309 in the inverse order of
their citation. See also Mormon
Church v. United States, 136 U. S. 1.
5 Perry on Trusts, $13; Lampleigh
v. Lampleigh, 1 P. Wms. 112.
6 Lampleigh v. Lampleigh, 1 P.
Wrms. 112.
7 Lantry v. Lantry, 51 Ill, 458. Any
writing, no matter how informal, be-
fore or after the creation, will do.
Id.; Browne on Statute of Frauds,
§ 97.
82 Washb. R. P. (4th ed.) 482, 501.
§ 637.]
TEIINGS REAL. 999.
The second class may arise out of an agreement inter vivos if
the words used imply or infer that the intention was to create
a trust and is accompanied by a consideration. They rest upon
the intention and the consideration." *
The third class arises from the nature of the transaction, irre-
spective of any intention of the parties. The original founda-
tion of this class of trusts is the natural equity that arises when
parties do certain things not the intention.” •
A principal instance of this kind is where property is pur-
chased with money furnished by or on behalf of one person and
title, taken in the name of another.”
The fourth class of trusts has its foundation in what in equity
is regarded as a fraud, as where an influential or confidential
relation, or any promise to perform an act for the benefit of
the person conveying, or a third person, is made the means of
acquiring title. Equity declares that under such circumstances
he ought not to hold and enjoy the beneficial use, and will
raise a trust by construction out of the transaction.* They
differ from other trusts in that they are not within the inten-
tion or contemplation of the parties at the time the contract is
made, from which (the contract) they are construed by the
court; they are thrust upon a party contrary to his intentions.”
1 Perry on Trusts, 112.
? While it is important to distin-
guish between the different classes
of cases, it is not essential that a case
fall entirely within one or the other
of the classes.
8Perry on Trusts, $124, 133. To
constitute a constructive trust it is
only necessary that the consideration
should be advanced by or on behalf
of the person claiming the trust.
Getman v. Getman, 1 Barb. Ch. 514;
Blodgett v. Hildreth, 103 Mass. 487;
Siemon v. Schruck, 29 N. Y. 598; Fairs
v. Dunne, 7 Bush, 276; Zinn’s Lead.
Cases, 297; Emmons v. Moore, 85 Ill.
303; Cannon v. White, 125 Ill. 412;
Ger. Am. T. Co. v. Shallens, 147 Pa.
St. 585; Larmon v. Knight, 140 Ill.
232.
*This is a most interesting class of
trusts, and requires very often the
clearest discrimination in order to:
keep it without the statute of frauds,
because it rests upon an eacpress
agreement, and the argument always
is that so resting upon express agree-
ment it is an express trust and within
the statute of frauds; but the ele-
ment of fraud in procuring the agree-
ment by promise, and the mere neg-
lect to comply there with, furnishes
the equity which changes it from a
mere express trust to one eac maleficio
which equity will enforce. See for
an extreme but typical case, Cannon
v. White, 125 Ill. 421; Barrell v.
Pſandrick, 42 Ala. 60; Hoge v. Hoge,
1 Watts, 163, 26 Am. Dec. 52; Larmon
v. Knight, 140 Ill. 242.
5 Perry on Trusts, 166; Beach v.
Dyer, 93 Ill. 298; Wright v. Gay, 10t
Ill. 241; Allen v. Jackson, 122 Ill. 567.
In a case where it was insisted that,
1000
I&EAL. [$ 638.
THINGS
It is not necessary to show in such cases that there was an in-
tention to defraud.”
Bow ERs, when spoken of as an interest in land, means a right
vested in a particular person of making either a general or spe-
ºcial disposition of land.
It is somewhat analogous to a use, differing, however, in the
fact that the person in whom the power is vested has not neces-
sarily vested in him an estate in the land.”
A power may be created by a legislative act, and it is then
called a statutory power, but the technical power is one which
arises by private conveyance, and passes under the name of —
Power of appointment,” i. e.,
a power to limit or direct to
what use the estate shall be put, or to whom it shall be con-
veyed.”
This power of appointment is not, strictly speaking, an estate
in land, but it is an interest recognized in equity, and which
equity will enforce at the suit of one in whose favor its execu-
tion is undertaken.”
A court of equity may compel him to ex-
ercise a general power by using his discretion, or a special power
by executing the direction.”
SEC. 638. Estates Considered with Reference to the Time of
JEnjoyment are either in possession, remainder or reversion.
ESTATES IN PossESSION are those which the owner has the
present right to enjoy.
They are called executed estates.
A REMAINDER is the remnant of an estate in fee, out of which
the owner has granted a lesser estate to mediate grantees, and
which is by the same deed granted to the remainderman to be
held after the termination of these mediate estates.
The re-
mainderman is always a different person from the grantor.
because the trust was claimed to re-
sult from a parol express agreement
there could be only an express trust,
the court dissent from that view and
say the distinction may seem nice
but is well established. Lantry v.
Lantry, 51 Ill. 458, 465; White v. Can-
non, 125 Ill. 412.
1 Barrell v. Handrick, 42 Ala. 60;
Cannon v. White, 125 Ill. 412. In the
last case it proves that the trustee
intended to act in good faith, but was
murdered before carrying out the
eacpress agreement to convey. See 2
Washb. R. P. 482.
2 Taylor v. Horde, 1 Burr. 60. The
power is on page 63.
* A power of attorney is more like
an agency, i. e., to perform some act
in the name of the person appoint-
ing.
4 Jesson v. Wright, 2 Bligh, 1, 21
Per. R. 1. -
5 Johnson v. Cushing, 15 N. H. 298.
6 Bispham's Eq., sec. 77; Graves’
Sum. R. P. 183; 2 Washb. R. P. 686.
§ 639.] THINGs REAL. 1001
The rule against perpetuities (remoteness) applies, and the
remainderman must come to the enjoyment of his estate within
the time limit of that rule."
A remainder must be granted in the same instrument with
a particular estate, otherwise the estate granted would be a
mere grant of a reversion.
The estate in remainder must vest in the grantee during the
continuance of the particular estate, or immediately on its ter-
mination. º -
A vested remainder is one subject to no condition precedent,
and which is always ready, during its continuance, to come
into the possession of a certain person, already existing and as-
certained, on the determination of the particular estate, now
or hereafter, in any manner whatsoever. And any remainder
not so ready is contingent.”
A contingent or executory remainder is limited to an unas-
certained person who may never come into being, or to take
effect upon an uncertain event, or which may not happen until
after the particular estate has determined, thereby rendering
uncertain the contingency upon which the remainder depends.”
A REVERSION is the remnant left unconveyed of a fee-simple
estate out of which the owner has granted less estates.
Although it is spoken of as that estate which returns to him,
all freeholds being inheritable, it is to be understood that com-
ing to him means to him and his heirs or devisees.”
It resembles very much the escheat of a feudal lord, although
resembling not at all what is called the escheat under our law.”
A reversion is never created. It simply exists by operation
of law wherever a freehold less than the fee has been granted.
SEC. 639. As to Certainty of Commencement and Continuance,
estates are either absolute or conditional.
ABSOLUTE ESTATES need no explanation. They are unqualified
by any condition or contingency. -
OF CONDITIONs, generally, nothing need be added to what has
been said in connection with contracts."
I Ould v. Wash. Hosp., 95 U. S. 309. be assigned or sold. Needles v. Need-
2 Charles A. Graves in 4 Va. Law les, 7 Ohio St. 432; Ruch v. Rock
Reg. 625; Gray's Perpetuities, § 110. Island, 97 U. S. 693.
3 Id.; 2 Black. Com. 163. See 51 Blk. Com. 175. -
Thomas v. Ritchie, 136 U. S. 519; Wil- 6 Ante, p. 755; 2 Cooley's Blk. (4th
son v. White, 109 N. Y. 59. ed.), 155.
*If it is a mere possibility it cannot
1002 THINGS REALs
[š 639.
When an estate has qualifications annexed to it rendering
its commencement or continuance conditional upon the per-
formance or non-performance of some act or the happening of
some event, it is an estate on condition."
A mere condition and the happening of the contingency con-
templated does not itself revest the estate or terminate it; the
title does not change until re-entry is made under the condi-
tion.”
Estates granted on conditional limitation differ from estates
on condition in the following particulars: 1st. A conditional
limitation is used where the whole estate passes from the
grantor. 2d. Upon the happening of the condition the estate
terminates, and no entry is necessary. 3d. In case of condi-
tions there are always persons in being who, by uniting, can
pass a title in the fee, but in estates on conditional limitation
the whole estate passes to the grantee, and repasses upon the
event contemplated.” *
MoRTGAGEs are estates on condition. Mortgages and trust
deeds are conveyances of the estate of the mortgagor to the
mortgagee as security for the performance of some condition
mentioned in the mortgage, accompanied with a stipulation
setting forth the condition that when the obligation is per-
formed the deed is void. This is called the defeasance clause.”
Formerly it was held that the mortgagor was from the begin-
ning a mere tenant at will of the mortgagee, but such is not
now the recognized doctrine.” Where the mortgagee is in pos-
session he is said to be a trustee of the mortgagor, and that he
cannot purchase the fee; but this is not the rule."
The legal title is in the mortgagee, but equity regards the
1 These conditions are matters of
contract, and the contract, like all
other contracts, is bounded by pub-
lic policy. Conditions in restraint
of marriage, or conditions inconsist-
ent with the estate granted, are void.
Luigart v. Ripley, 19 Ohio St. 24;
Canal Bridge Co. v. Methodist Soc.,
13 Met. 335; 2 Blk. Com. 157, note.
2 Barrie v. Smith, 47 Mich. 130;
Ruch v. Rock Island, 97 U. S. 693.
82 Blk. Com. 255, note; Proprietors
v. Grant, 3 Gray, 143.
4 See Walsh v. Brennan, 52 Ill. 193.
Merwin's Eq. 342; Jones on Mort.,
§ 17. Without such a clause it is
competent to show by parol evidence
that what appears to be an absolute
deed was in fact given as security,
and but a mortgage in effect. Emer-
son v. Atwater, 7 Mich. 12; Camp-
bell v. Dearborn, 109 Mass. 130.
5 Partridge v. Bene, 5 B. & Ald,
604; 7 E. C. L. 204, note; Willis v.
East. T. & B, CO., 169 U. S. 302.
6 Griffin v. M. Co., 52 Ill. 130.
§ 639.] THINGs REAL. 1003
mortgagor as the real owner, and views the transaction as it is
in substance, a mere security for the debt." A mortgage con-
veying by “bargain and sale * to the mortgagee, “his heirs
and assigns,” carries after-acquired estates.”
After the time has elapsed for the performance of the con-
dition named in the defeasance clause, the mortgagee has the
absolute estate, and, but for qualifications annexed to the trans-
action, first by courts of equity and finally defined by statu-
tory enactments, the estate of the mortgagor would be entirely
terminated.
An equity of redemption” was very early recognized wherever
it was shown that by fraud, accident, mistake or any hardship
not involving laches on the part of the mortgagor he had
been prevented from performing or was unable to perform the
condition, and chancery courts allowed him to redeem upon
equitable conditions.”
This is called the equity of redemption; and by statute a
definite period is fixed within which this redemption must be
made. . .
A mortgage is not in itself and alone assignable;' but an as-
signment of the debt carries with it the security;" and if the
indebtedness is evidenced by a negotiable note, the note does
not lose its negotiability by being secured, but the holder, so
far as his rights depend upon the mortgage, holds them subject
to equities between the original parties."
Jęemedies After Condition Broken.— The mortgagor is a mere
tenant at will.” The mortgagee generally has the right to enter
if he may peaceably, or he may bring an action for the posses-
1 The case last cited and Carroll v.
Ballance, 26 Ill. 9, contain full dis-
cussions of the nature of the respect-
ive estates of mortgagor and mort-
gagee.
2 Gibbon v. Hoag, 95 Ill. 45.
3 See Kenyon v. Shreck, 52 Ill. 382.
44 Kent, Com. 158; Merwin, Eq.,
§ 640.
5 Delano v. Bennett, 90 Ill, 533.
6 But to affect subsequent pur-
chasers, the record is alone effective.
If the record shows the mortgage
canceled, an assignee of the notes
cannot hold against a purchaser.
Bank v. Anderson, 14 Iowa, 544;
Jones, Mort., § 820.
7 This may be qualified if done
with assent of mortgagor. Matthew
v. Wallwyn, 1 Ves, Jr. 118; Melendy
v. Keen, 89 Ill. 404.
8 Carroll v. Ballance, 26 Ill.9. When
a mortgage is given to secure a debt
payable in instalments, with option
in power of sale, on default in pay-
ment of any part, to declare all due,
no notice of the option is required,
and an assignee may exercise it.
Heath v. Hall, 60 Ill. 344.
1004 THINGS REAL. [$640.
sion (ejectment, where the ancient names are retained, being the
appropriate remedy), and in some instances there is a statutory
foreclosure on the law side of the court; and besides these, the
equity of redemption may be foreclosed by a suit in equity,
wherein it is stipulated that by a short day, if the debtor do
not pay, the land shall be sold to satisfy the mortgage." If the
mortgage is given to secure the repayment of money, a suit for
the money may also be brought. These remedies are cumu-
lative.” - -
Powers of sale are sometimes inserted in mortgages, allowing
the mortgagee or trustee to sell the land after condition broken,
with or without notice.”
They are not generally regarded with favor, and a sale under
them may be generally redeemed from in the same manner as
if the sale were under a decree of the court.
SEC. 640. Estates Considered According to the Number and
Connection of Tenants.-
AN ESTATE IN SEVERALTY is ome held by a single owner.
Estates having a plurality of owners are classified as joint
tenancies, tenancies in common, partnership estates, tenancies
in coparcenary, and estates in entirety.
Joint TENANCY is created only by purchase, and all the ten-
ants must derive title through the same source. Each must
have the same interest in point of dignity, time of enjoyment
and quality of possession.*
Each and all are said to hold per my et per tout,” 2. e., each
holds his share in the whole without any distinction as to parts.
The incident of survivorship, or jus accrescendi, attaches."
Each, however, may alien his share, but instantly this is done
1 The right of possession after sale
under foreclosure of a mortgage is
held, in Danehower v. Dawson (Ark.),
44 L. R. A. 193, to be in the purchaser
during the year allowed by statute
for redemption, where the statute
transfers the title subject to redemp-
tion, and is silent as to the posses-
sion.
2 Delaney v. Clement, 3 Scam. 201.
3 Harper v. Ely, 56 Ill. 179; Gibbon
v. Hoag, 95 Ill. 45.
*The real practical distinction be-
tween tenants in common and co-
parceners was taken away by the
JEnglish statutes giving the right of
partition to tenants in common (31–
32 Hen. VIII.). Berry v. Sewall, 65.
Fed. Rep. 742.
5 This is a French sentence, but is
not correctly written. It was as late
as 1701 properly written by English
lawyers, parmi et par towt, Law-
French Dict., by F. O., 1701.
6 Babbitt v. Day, 41 N. J. Eq. 392,
§ 640.] THINGS REAL- 1005,
the joint tenancy is destroyed because the new owner does not
take by the same title. *.
In this country the courts have not favored estates in joint
tenancy, holding that the right of survivorship is contrary to
the policy of our institutions," and in most of the states, either
by statute or construction, a conveyance by two or more per-
sons is held to create a tenancy in common. Such statutes,
however, do not apply to trustees.” &
ESTATES IN PARTNERSHIP cannot arise by descent, although
title may come by devise or by purchase.
Once wested the estate is given an anomalous aspect. A part-
nership, as we have seen, is a mercantile arrangement with busi-
ness for its object, and firm property, whatever its character,
is held and treated in law, until all partnership matters are
settled, as owned by the firm rather than by the individual
members.”
TENANCY IN COMMON differs essentially from either of the
above. The title may be by purchase or descent, and the vari-
ous titles need not be similar in any respect.”
Unity of possession is all that is required.” The interest of
a tenant in common may be sold freely, and until partition had
such transfer does not change the relation of the various own-
ers." &
The co-tenant may manage the whole freely, and at common
law was not accountable for overreaching his co-tenants and
taking more than his share," but these rights are curtailed and
controlled in modern law. They may hold adversely to each
other, but such a holding must be clearly shown.”
1 Sergeant v. Steinberger, 2 Ohio, v. Wainwright, 6 Minn. 241; 80 Am.
305.
2 Several trustees usually hold in
joint tenancy, and are not within the
statutes aimed at the survivorship.
As it was said in Parsons v. Boyd, 20
Ala. 112, trustees are not within the
reason of the statute, nor the evil in-
tended to be remedied by it. See
also Philadelphia & R. R. R. Co. v.
Dehigh Nav. Co., 36 Pa. St. 204,
*See ante, p. 826 et seq.; Goodwin
v. Richardson, 11 Mass, 469; Arnold
Dec. 448.
4 Stevens v. Reynolds, 8 Am. Rep.
330; 143 Ind. 467.
5 Cecil v. Clark, 44 W. Va. 659.
6 Brown v. Wellington, 106 Mass.
3.18.
7 Brown v. Wellington, supra. One
tenant may be guilty of waste. Hen-
son v. Henson, 120 N. C. 400.
8 Kotz v. Belz, 178 Ill. 434; Gross
v. Washington (Tenn.), 38 S. W. Rep.
442.
1006 THINGS REAL.
[$ 641.
TENANCY IN COPARCENARY is like a joint tenancy, except that
its title is always by descent.
Coparceners do not necessarily hold for the same time. The
right of survivorship does not attach.
Each has a right to distinct portions and may alienate or
have partition of the estate, whereas the joint tenant cannot,
excepting by statute; and to this right of partition is sometimes
ascribed the name parcenar." This estate is said not to exist
in purity except in Maryland.”
ESTATE BY ENTIRETY was an estate granted to the husband
and wife, and because of their being considered as one person
they took a peculiar estate.” E. g., if they two were named
with several others, say two others, the husband and wife took
but as one person—a one-third." As in joint tenancy, the estate
went to the survivor, and neither could defeat this right.”
The severing of this unity of husband and wife by statute
has been held to destroy this estate," but the weight of author-
ity is to the contrary."
SEC. 641. The Title to Estates.—The two modes of transfer,
viz., by descent and purchase, have been spoken of.”
The transfer of property is governed entirely by the laws of
situs of the property.”
INTESTATE SUCCESSION.—The term “descent”" does not aptly
indicate the law as used at the present time, for heirs include
tº
12 Blk. Com. 188, 189, par fr.
2 Gilpin v. Hollingsworth, 3 Md.
1190; 1 Washb. R. P. 415; 4 Kent, 367.
3 Cooper v. Cooper, 76 Ill, 57; Re
Parry's Estate, 41 Atl. Rep. 448.
4 Williams, R. P. (11th ed.), p. 357;
Hallett v. Inlow, 57 Ind. 412.
5 Bartles v. Nunan, 92 N. Y. 152.
6 Williams, R. P. (11th ed.), p. 376;
Cooper v. Cooper, supra.
7 Id.
8 See 2 Cooley's Blk. 201. The treat-
ment of the subject of conveyancing
will be more closely confined to the
statement of the fundamental prin-
ciples and essential features than has
been the case in any preceding part
of the book, for the reasons that these
details depend almost entirely on
statutory provisions, are exceedingly
variant, and the subject can be ex-
amined minutely only in connection
with particular statutes. It is be-
lieved that a better understanding of
the underlying principles can be ob-
tained apart from these details. War-
velle's Real Prop. (2d ed.), a book now
in press, will, it is believed, prove on
the subject of conveyancing a most
useful work both to the student and
practitioner.
9 Robertson v. Pickrell, 109 U. S.
608; Story, Confi. L., sec. 428; Ins. Co.
v. Com. Bank, 68 Ill. 348.
10 Female Acad. v. Sullivan, 116 Ill.
375–90,
§ 641.]
THINGS REAL. 1007
OUTLINE OF TITLE TO REAL PROPERTY.*
OF TITLE.
ANATOMY OF A
DEED.
ſ By Descent — Intestate Succession.
ſ 1. By feoffment, i.e., delivery of possession with in-
tent to transfer ownership.
ſ 1. Deeds.
2. Covenant to stand
seized.
. Lease.
. Release.
. Parol partition.
| 2. By grant.
Py Purchase, 4
-
+
|
l
3. By devise.
4. By accretion.’
5. By operation of law
2. Dedication.
and act of party. €CILC8,L1
-:
| 1. Prescription.
3
. Estoppel.
IETEMENTS OIF A TRANSFER BY DEED.
e
Names of parties.
Inducement,
Premises.
I. e., recital of any matters leading up to conveyance,
Recital of consideration.
Granting Description of estate granted.
Clawse. | Description of land in which it is granted.
Seizin and title.
Warranty and quiet enjoyment.
Covenants.
Reserving easements, etc.
Restricting use.
Stipulative covenants. |
Conditions and Provisos.
FIabendum, and Tenendum.
Attestation Clawse (reciting signing, sealing and delivery).
Signing.
Formalities of | Sealing.
IEacecution. Acknowledgment.
U Delivery and acceptance.
Registration of Title.
* See page 954.
64
1008 THINGS REAL. [$641.
others than lineal descendants, although giving these the pref-
erence.
The policy of our law is to keep property in the hands of
private owners so long as kindred can be found in descendant
or ascendant lines, including even the collateral, and in the
case of failure of heirs to allow the spouse to take as an heir,"
in this manner postponing to the remotest time the escheat of
land. º:
The law of descent then consists in those canons of descent
by which the degrees of consanguinity are computed which ob-
tain in the state where the land is situated. The former are
adopted from either the civil law or the canon law, and are in
every state modified by the statutes.”
By PURCHASE is meant every mode of transfer other than by
descent.”
In England there were recognized ten formal modes, namely:
feoffment, grant, fine, common recovery,” exchange, release and
confirmation, grant of reversion with attornment, bargain and
sale, and by devise (will). Other collateral modes of transfer
obtaining title are also recognized, viz.: accretion,” prescription,
dedication, estoppel, partition, and by judgment; but each of
these in some way constitutes, or is incidental to, some or other
of the direct modes of transfer to be mentioned.
Peoffment.— In England all conveyances by act of the party
operated either as a feoffment or a grant, i. e., all conveyances
were grants, as we would understand it, but the one termed a
feoffment was more than a grant. It was a grant either by
l Lockwood v. Moffett, 177 Ill. 49.
*See an exhaustive presentation of
the canons of descent as modified by
statutes of the various states, where
the details are minutely examined,
sub. In re Ingram, 78 Cal. 586; 12
Am. St. Rep. 80, note.
Descent of Personalty by Common
Law.— One-third to heirs or lineal
descendants, one-third to wife, one-
third could be demised. If he died
without a wife, he could dispose of
one-half; the other half went to his
children. If he had no children, the
wife was entitled to one-half, and he
might bequeath the other. If he had
neither wife nor issue, the whole was
at his own disposal. Magoun v. Ill.
Trust & S. B., 170 U. S. 290. See also
In re Ingram, Supra.
32 Cooley's Blk. (4th ed.) 204, 242,
note.
4 Lyle v. Richards, 9 S. & R. (Pa.)
430.
5Accretion, for example, is an allu-
vial deposit cast up by water, and
does not transfer title. It but adds
to the extent of the land and ex-
pands the bounds otherwise indefi-
mite. Saulet v. Shepherd, 4 Wall, 502.
§ 641.] THINGS REAL. 1009
oral declaration, or reduced to writing accompanied with the
actual or symbolical delivery of possession called livery of
seizin; the grant, i. e., the declaration of intent to convey, and
the delivery, constituted a feoffment. The policy of the regis-
tration acts and the statute of frauds render it very doubtful
if any title can be perfected, except through a trust, without
paper color of title, unless the possession shall continue for
the period of limitation."
A grant was the same, without delivery of possession, and
was introduced to transfer interests incapable of delivery.
Prescription — Adverse Possession.— Under the old law it
was held that any person in possession of the land, rightfully
or wrongfully, could pass a fee simple by investing an inno-
cent purchaser with the same possession.” Our law will not
admit of this.
A bare intruder cannot, without reference to time, acquire
and transmit a title. His possession must be adverse with a
claim of ownership,” and to this must be added what is called
prescription, i. e., a holding for such a length of time as pre-
supposes a grant, usually fixed by statute at twenty years.”
Nor will the possession of an intruder extend beyond his
visible occupation, and by construction to a larger tract included
within the prior title with that actually occupied.”
Color of Title.—An adversary possession creates no right
until this time of prescription elapses, saving only that a grant,
irrespective of the title of the grantor, constitutes color of title,
and under the statutes of the states will generally, in connec-
tion with payment of taxes, ripen into a good title in a shorter
period than by prescription.”
1 Lessees of Lindsly v. Coats, 1 Ohio,
243; 1 Washb. R. P. (4th ed.), p. 60,
ch. 11, sec. 67; Clark v. Graham, 6
Wheat. 577. A mere parol gift of
land without consideration accom-
panied with possession will not bind
the giver. Temple v. Janner, 71 Ill.
13. But if full consideration is paid,
some courts will decree a specific
performance. Such a possession is
adverse. Schafer v. Hauser, 111 Mich.
622. Cf. 1 Washb. R. P. (5th ed.),
p. 60.
2 Taylor v. Horde, 1 Burr. 60; 2 Sm.
Ld. Cas. 644; Fort Dearborn Lodge
v. Kline, 115 Ill. 177.
3 Sée Knight v. Knight, 178 Ill.
553, and citation; Post v. Pearsall, 22
Wend. 450.
4 Id. See reasoning in latter case.
5 See Gowett v. Ramsey, 26 W. Va.
375. It may begin under void trans-
fer. Schafer v. Hauser, 111 Mich. 622.
6 Fines and common recoveries may
be thrown out of contemplation as
being obsolete. Eacchange, like eac-
1010 THINGS REAL. [$ 641.
JDedication is one mode of indicating the intent to devote a
particular piece of land to the use of the public. To constitute
a dedication, such intent must appear and also acceptance by
the public." It may be by express act or declaration and take
effect at once;” or by written grant, or shown by long user;”
or arise by estoppel shown by negligently allowing the public
to use.” These are all by acts in pais, but there are modes
pointed out by statutes, generally by platting and subdividing
land with parts of it marked for public use. These pass the
title in the same manner as any other conveyance.”
A release is the extinguishment or relinquishment of any
contingent or executory interest, as, for example, a contingent
remainder. The release can be only to an owner of an interest
in the estate." -
A confirmation is rendering complete and absolute a title
which was conditional, determinable or executory."
Pargain, and sale indicates the purchase and transfer of land
J’or a valuable consideration, which must be present.”
JDevise.—A will, or, as it is called, a testament, is the act of
one who is living making testamentary disposition of his prop-
erty to take effect after his death.”
Before speaking particularly of the modes of conveyance
appropriate to the transfer of particular estates, mention may
be made of two provisions of the law regulating the formal-
ities which must accompany transfer of estates, namely, the
changes of goods and chattels, would
be what we call trading of farms; the
only difference is in the considera-
tion, while the devolution of title
must be as in other cases. Clark v.
Graham, 6 Wheat. 577. Parol eac-
changes are not valid here. Berry v.
Sewall, 65 Fed. Rep. 742.
1 Coburn v. San Mateo Co., 75 Fed.
Rep. 520; McKay v. Hyde Park, 134
U. S. 84; County of Yolo v. Barney,
79 Cal. 375; 12 Am, St. Rep. 152.
21 Dillon, Mun. Cor., sec. 105; In
the Matter of Thirty-second Street,
19 Wend. 130. *
3 Marcy v. Taylor, 19 Ill. 636.
4 Wilder v. St. Paul, 12 Minn. 192.
The intent is the important thing.
Quinn v. State, 49 Ala. 353.
5 People v. Holliday, 93 Cal. 24; 27
Am. St. Rep. 195, note.
6 Beddoe’s Exºr v. Wadsworth, 21
Wend. 120; Williams v. Esten, 179
Ill., 267.
7 ICl.
8 See post, p. 1020.
9 The grant of a reversion with at-
torm ment indicates that the owner of
the reversion grants it, and those pos-
Sessing the immediate estates ac-
Knowledge the paramount ownership
in the grantee. It is not in use here,
where the feudal idea of tenure is
abolished. - :
§ 641.] THINGS REAL. 101.T.
statute of frauds, and particularly that rule of property which
affixes a positive inflexible meaning to certain words when used
in certain connections, which, however technical it may seem,
appears incapable of legislative annihilation—the rule in Shel-
ley’s case. - -
As to Parol Partition.— The ancient law was that two ten-
ants in common may make partition by parol, and execute the
same in severalty by livery;' but for the statute of frauds this
would now be the rule.” *
It is clear that such a fixing of portions of land in which
several tenants had an equal right is not in strictness the same
as an original mode of creating an estate in land. It rather
dissolves the unity before existing, and assigns to each his own
share in a common estate in severalty. Such a proceeding does
not decide title or create any new title. It leaves the title as
it was, except to locate such rights as the party may have in
distinct parts of the premises.”
Such a proceeding is nevertheless within the statute of frauds,
and so to complete the transfer without deed the possession
must continue for the period of prescription.”
The Rule in Shelley's Case.”—In this connection it will be con-
venient to explain this rule of property and the signification of
certain technical words essential to understand in order to com-
prehend the reasoning of decisions or know the law at the
present time.
It should be remembered that grants came into use subse-
quent to the original mode of transfer by feoffment.
The Rule Stated.—“When the ancestor, by any gift or convey-
ance, takes an estate of freehold, and in the same gift or convey-
*Tabler v. Wiseman, 2 Ohio St. 207–
211.
1 Berry v. Seawall, 65 Fed. Rep. 742.
2 Disputed bowmdaries stand per-
haps on a somewhat different but
analogous principle. There is here
no pretense of exchange or yielding
of ownership, but fixing a fact, and
if the line is bond fide in dispute, an
agreement fairly made without fraud
or mistake will, if followed by pos-
session, bind without regard to time.
Vosburgh v. Teator, 32 N. Y. 561;
Turner v. Baker, 64 Mo. 218; Propri-
etors v. Prescott, 7 Allen, 496; Cut-
ler v. Callison, 72 Ill. 113.
4 See the whole subject discussed
in Berry v. Seawall, 65 Fed. Rep. 742;
also Nave v. Smith, 95 MO. 596; 6 Am.
St. Rep. 79.
5 For elaborate discussion, decision
and explanation, see Perrin v. Blake,
4 Burr. 2579, and Jesson v. Wright, 2
Bligh, 1; re-reported in 10 Eng. Rul.
Cas. 689–757, English and American
notes; also 21 Revised Rep. 1.
1012 THINGS REAL. [$ 641.
ance an estate is limited either mediately or immediately to his
heirs in fee or in tail, always in such cases the word “heir ' is a
word of limitation of the estate, and not a word of purchase.”"
At the time when this rule was formulated, a grant to a
grantee, by his name simply, vested only a life estate, but if the
words “and to his heirs” were added, the question arose, did
the heirs take a remainder or did it enlarge his estate?
The technical effect of the use of the word “heirs” was to en-
large the duration of the estate from a life estate to a fee, and
a fee could not be passed in a grant without the use of the
word “heirs.”
A grant to a man and to his heirs was at one time regarded
as conveying to him only a life estate, and as creating a vested
estate in those who would be heirs as purchasers.”
Meaning of Words and Phrases Used in the Rule.— A pur-
chaser is one to whom an estate is granted.
A limitation is a marking out of the eatent and duration of
the estate.
Heirs, used simply, were the heirs general, without limitation
or qualification, and, although sounding in the plural, tech-
nically meant but one, and under the rule of primogeniture”
designated the eldest male, and if there were no males the
daughters took as one in coparcenary.
Heirs could never designate persons living while the ancestor
still lived, because no living person could have heirs (memo est
hares wiventis).”
Mediately or Immediately.— By immediately the rule means
where the grantor grants to the grantee and to his heirs, with
Out any other estate being granted to any other person, the
words “to his heirs,” etc., following directly after the grantee’s
name. “Or mediately” means that between the estate granted
to the ancestor and that in remainder apparently granted to
the heirs, or heirs of his body, there intervenes another estate
(or estates) less than a fee simple granted to a third person.
! See exhaustive note sub. Carpen-
ter v. Van Olinder, 127 Ill. 42, in 11
Am. St. Rep. 99.
2 Williams, R. P.
Hutch.), 73, 75. -
3 Tucker v. Adams, 14 Ga. 551. The
lord chancellor, in Jesson v. Wright,
(17th ed., by
says “heirs of the body” mean one
person at any given time, and they
comprehend all the posterity of the
donee in succession. 2 Bligh, 1; 21
Rev. Rep. 38; 10 Eng. Rul. Cas. 719; 2
Cooley's Blk. (4th ed.), pp. 212–16.
4 Broom's Max. 522.
§ 641.] THINGS REAL. 1013
This form of limitation is called a remainder over, and the
words limiting or describing the remainder are remote from
the first mention of the grantee.
The rule is stated in a way perhaps the best calculated to
confuse a novice, although not particularly intricate to a per-
son familiar with the institutions of the time and the language
of conveyancing.
The reason for the broad scope of the rule as formulated is that
it was intended to embrace every case that would be likely to
occur, and to announce that there was no difference whether
there was an intervening estate or not.
Bearing in mind the distinction between fee simple and fee
tail, if the limitation was to the heirs of a man's body, these
indicated not his general heirs, but his children; whereas, to
constitute a fee simple, the expression must include all heirs in
general."
The effect of the rule is that those designated as heirs do not
take any estate under the conveyance, but the words “heirs,
etc.,” indicate the quantity or duration of the estate granted
to the grantee named; that is, such words, “heirs, etc.,” are
words of limitation and not words of purchase.”
Płow to Avoid the Rule.—If it is intended that the grantee
shall have a life estate only, the deed must not say “to have and
1“In a limitation to a man and his
heirs,” says Fearne, “the words “his
heirs’ operate to vest in him another
and further estate than he would
have taken without them, viz.: the fee
which they superinduce upon the es-
tate for life, given him by that part
of the limitation which is expressly
directed to himself. This is well ex-
emplified by Mr. Justice Blackstone
in his opinion in Perrin v. Blake, 4
Burr. 2579, where he says ‘that the
creation of an estate in fee or in tail,
by a gift to A. and his heirs forever,
or to A. and to the heirs of his body
begotten, the first words (to A.) cre-
ate an estate for life; the latter (to
his heirs or the heirs of his body)
Create a remainder in fee or in tail,
and then by the conjunction of the
two estates, or the merger of the less
in the greater, he becomes tenant in
fee or tenant in possession.’” Fearne,
Cont. Rem., p. 104.
2 So Fearne says: “In truth the
only substantial difference between
a limitation to A. and his heirs, and
a limitation to him for life, remain-
der to B. in tail, remainder to the
right heirs of A., appears to be, that
in the first instance A. takes the en-
tire estate in fee, and in the other he
takes it (i. e., the estate) divided by
and subject to the estate tail in B.
The words ‘ his heirs,” in either case,
operate equally as words of limita-
tion, viz.: words giving the estate
imported by them not originally to
the express objects of the descrip-
tion, but extending the ancestor’s es-
tate immediately in the one case, and
mediately in the other, to them by
1014 THINGS REAL.
[$ 641.
to hold to his heirs,” but apt words are, “to have and to hold
during natural life.” These words, like the word “heirs,” limit
the estate. -
In Shelley's specific case the word “heirs,” immediately after
his name, was not used, but the estate was granted to Edward
Shelley for life; then followed intervening estates for life, with
remainder to the use of the heirs male of the body of said Ed-
ward Shelley lawfully begotten, so that the phrase was a long
one, embracing several generations; but it will be observed
that these superadded words after the words “male of the
body of Edward” added nothing to the ancient meaning of
the word “heirs,” each expression keeping within the time-
honored lineal heirs of the family of Shelley, so that the super-
added words were consistent with the first one." *
All that is necessary, then, to get without the rule, and con-
vey to children or kinsmen, is to add to words applicable to
those persons who in the natural course of events will become
heirs, a designation broader or narrower than express an estate
tail or in fee, say children, sons, etc.”
DEEDs.”—A deed, broadly speaking, is any contractin writing
conveying a continuing right, even though it be a right personal
in its nature,” but as a deed of conveyance is a written instru-
ment purporting to convey an interest in land. The words.
purporting to transfer the estate constitute the grant, but a
deed usually contains other matters beside a bare grant, e.g.,
recital of consideration, the usual covenants, unusual covenants,
particular covenants, the habendum clause, describing how the
estate granted is to be held, etc.”
descent, and limiting the ultimate
bounds of the estate which he is to
take.” Fearne, Cont. Rem., p. 106.
1 Amte, p. 1012. See 1 Prest. On Est.
247 et seq.; Harrison v. Harrison, 7
M. & G. 938; 49 E. C. L. 938.
2 Jesson v. Wright, 2 Bligh, 1; 21
Revised Rep. 1; also 10 Eng. Rul. Cas.
719. See Tucker v. Adams, 14 Ga.
548, for many instances of English
Cases where the superadded words
are held to overcome the technical
meaning of the word “heirs.” See
also writer’s note, 2 Cooley's Blk. (4th
ed.) 242.
* A quitclaim deed resembles a re-
lease, but it grants and quitclaims,
and consequently will pass title.
A quitclaim merely conveys and
Quitclaims all present interest. It
will not operate upon after-acquired
title, or contingent or executory in-
terests; for these a deed of grant and
warranty or a release should be used.
See full explanation in Williams v.
Esten, 179 Ill. 267. •
4 Worrell v. Munn, 5 N. Y. 229;
Baum v. Parkhurst, 26 Ill. App. 128.
5 Statutes defining the import of
short-form grants materially modify
the ancient common law.
§ 641.]
1015.
THINGS REAL.
A deed may be a very simple document, although in ancient.
times frequently couched in the most formal language."
The Parts of a Deed.—The recital of the parties, the grant
or demise (if it be a lease), designation of the estate in the
granting clause, the description of the land,- these are the es-
sentials of the grant.”
Appropriate Collateral Provisions.— The habendum clause is
that part of a deed which more fully describes the estate
granted.” If there is inconsistency the granting clause controls.“
Covenants.--It was usual to insert at large in deeds all cove-
nants whether of the character to be implied or not.”
Covenant of title was implied in the very act of granting or
demising,” but it was common formerly to recite that the
grantor had a good right to convey and was seized of the es-
tate conveyed."
Covenant of Warranty.— It was anciently implied that the
grantor would defend his tenant, but it is now common to add
a covenant that the grantor will forever defend it against the
lawful claims of all persons whatsoever.”
covenant of title, and reaches to possession disturbed by para-
mount right, and is not broken till ouster.”
It is more than a
1 A deed in the following form
would no doubt be sufficient to pass
any estate in possession: “I hereby
grant to John Jones the following
described lands,” followed by the
signature under seal. It would pass
a life estate. If to John Jones and his
heirs, it would pass a fee simple. If
to him and the heirs of his body, a
fee tail, modified, of course, by the
statute. -
* Signing, etc., relate to formality
of execution.
3 Cooper v. Cooper, 76 Ill. 57.
4 Id.; Bodine’s Adm’r v. Arthur, 91
Ry. 53; 34 Am. St. Rep. 162, note.
5 Modern Covenants are merely con-
tracts. Lake v. Tyree, 90 Va. 719.
Breach of Covenant is not failure of
consideration. Whitney v. Lewis, 21
Wend. 134,
6 Scott v. Rutherford, 92 U. S. 107;
Grannis v. Clark, 3 Cow. 36; Holden
wº-"
v, Taylor, Hob. 12. Implied cove-
mants attach naturally to grants of
property which is valuable only for
a special use in connection with other
property of the grantor; e.g., grant of
water-power implies covenant to keep.
dam, flumes, race, etc., in repair.
Sterling Hyd. Co. v. Williams, 66 Ill.
393. -
7This covenant is practically the
covenant of seizin and does not run
with the land. Carter v. Denman, 3.
Zab, 260.
8This has the effect to pass all
title subsequently acquired by the
grantor. Williams v. Esten, 179 Ill.
267. -
9 Beddoe’s Ex’r v. Wadsworth, 21
Wend. 120. There are general war-
ranties and special warranties, i. e.,.
against Some particular matter; and
covenants sometimes mingle in one
clause several features. E.g., Carter
i016 THINGs REAL. [$ 641.
Quiet enjoyment is much the same as the covenant of war-
ranty, and is that the grantee shall quietly enjoy the posses-
sion."
Covenants against incumbrances are also added.”
All the above covenants in some way depend upon the charac-
ter of the grantor's estate or the condition of his title at the time
of the grant, but some of them specify present conditions, while
others relate to contingencies which can only happen after-
ward; so that some may be broken when made, others will not
be broken till some subsequent time and the happening of the
contingency, which may or may not take place during the
holding of the grantee.
It is a general rule that covenants which are broken when
made do not run with the land, that is, cannot be sued upon
by any one except the covenantee;” and further, that a broken
covenant does not run, whether it be a real covenant or not.”
Jºestrictive covenants or conditions *— that is, contracts be-
tween the parties in reference to the manner in which the
property shall be used, or against particular uses of it—have
gradually worked themselves into deeds.
The validity of such restrictive agreements, as between the
parties, depends upon whether they are repugnant to the es-
tate granted or contrary to the policy of the law."
v. Tenman, 23 N. J. 260. Special
warranty may be against the claims
of heirs direct or collateral. Oliver
v. Piatt, 3 How. 333. A covernant of
warranty does not refer to fraudu-
lent representation. Take v. Tyree,
90 Va. 719.
1 Whitney v. Lewis, 21 Wend. 130;
3 Washb. (5th ed.) 662.
*An easement for public highway
is not an incumbrance. Whitbeck
v. Cook, 15 Johns. 482. But see 2 Cool-
ey’s Blk. (4th ed.) 304. A contract to
deliver a good and marketable title
Clear of all incumbrances cannot be
performed if there exist restrictive
Covenants running with the land.
3Batley v. Fowderer, 162 Pa. St. 460.
.” The leading case on covenants
running with the land is Spencer's
Case, 1 Sm. Lead. Cas, 145, where ex-
tensive notes are given. See cases
infra; Blydenburgh v. Cotheal, 1
Duer, 197; Beddoe’s Ex’r v. Wads-
worth, 21 Wend. 120; Sterling Hyd.
Co. v. Williams, 66 Ill. 393.
4 Id. .
5 See ante, pp. 752–55. It is very
important to determine whether the
stipulation is a mere covenant for
which an action will lie, either for
its breach or for damages, or whether
it is a condition or provision which
will defeat the estate. See Cowell v.
Springs Co., 100 U. S. 55.
6 Reilly v. Otto, 108 Mich. 330. The
use of particular parts may be regu-
lated. Buck v. Adams, 18 Stew. (N.J.)
552. A general scheme for using a
tract which is being divided (De
Gray v. Monmouth Beach Co., 5
Dick. 329); or the building line may
§ 641.] THINGS REAL. 101'ſ
E. g., as we have seen, a covenant that the party shall not
use the land at all, or a grant of a fee simple providing for a
rent service and forfeiture for non-payment, is void.
The most serious question arises as to how far such restrict-
ive covenants attach themselves to the title and bind persons
who are not parties to it, excepting by way of succeeding to
the estate; and although such persons are commonly said to
be not in privity to the Original agreement, it seems quite
rational that a person who voluntarily purchases a piece of
property, with knowledge of the existence of such a contract,
may be said to voluntarily make himself a privy to it. But
where the land devolves by operation of law, by descent, or
through judicial sales on execution, or through proceedings in
administration, bankruptcy or insolvent laws, a question of
greater difficulty arises, although the voluntary purchaser,
even in these cases, has the opportunity to assent directly, and
in the case of heirs, their rights to inherit resting upon munici-
pal law, they cannot be said to be injured if that law requires
them to be bound by covenants which the law recognizes; and
such covenants run with the land or not, according to their
nature."
The formalities of eacecution are signing, sealing, acknowledg-
ment and delivery.”
be fixed (Winfield v. Henry, 6 C. E.
Green, 188; Eckhart v. Irons, 18 Ill.
App. 173); or certain lines of busi-
ress may be prohibited (Reilly v.
Otto, supra; Graves v. Deterling, 120
N. Y. 448); and these will bind and
are enforceable in equity, with some
discretion in the court in case of
changed circumstances, or estoppel
by common disregard of the cove-
mants.
1 The questions are: Is the stipula-
tion of a nature that it may run ? and
Did the parties intend to bind future
owners? Conduit v. Ross, 102 Ind.
166; 2 Gray's Cas. Prop. 474. Pro-
fessor Gray has here collected the
leading cases on this subject.
2 Statute of Frauds.-The follow-
ing paraphrase of the sections of the
statute of frauds applicable to real
property is only intended to convey
the general idea. There are impor-
tant differences in the statute as
adopted in particular states, and nice
discrimination which can only be
appreciated by a minute study of
the words of the particular act under
consideration.
Sec. I. All leases, estates, interests
of freehold or terms of years, or any
uncertain interests therein, shall be
put in writing, otherwise to have the
effect of leases or estates at will only.
Sec. II excepts from the above
all leases not exceeding the term of
three years (sometimes reduced to
one year from date of bargain).
Sec. III. Assignments, grants or
surrenders of any lease, estate or in-
terest, either of freehold or term of
years, shall be in writing.
1018 THINGS REAL. [$ 641.
Signing may be by the name or making a mark, or by an
agent; and where one's name appears as grantor and he de-
livers the deed, it is doubtful whether his signature need be
affixed at all."
Sealing was formerly necessary for a document of that dig-
nity, but cannot be said to be an absolute requisite at the pres-
ent time.” y
Acknowledgment before a magistrate is not an absolute essen-
tial to proof of the due execution of a deed,” but it is the only
safe way. -
Delivery and acceptance are absolutely essential, and con-
sists in placing the deed either actually or constructively out
of the control of the grantor and under the control of the
grantee;" or the delivery may be in escrow, i.e., to a third per-
son to hold for the grantee."
Sec. V. All devises (wills) of lands
or tenements shall be in writing.
Sec. VI. No will Or devise in writ-
ing shall be revocable otherwise
than (a) by some other will or codicil
in writing, (b) or by burning (c) or
tearing the same by the testator or in
his presence, or by his direction and
consent.
Sec. VII. All declarations or crea-
tions of trusts or confidences of any
lands, tenements or hereditaments
shall be manifested and proved (not
created) by Some writing signed by
the party declaring such trust.
Sec. VIII excepts from above re-
sulting or constructive trusts.
Sec. IX. All grants and assign-
ments of trusts shall be in writing,
signed by the grantor.
Sec. X subjects trust property to
execution against the cestwi gue
trust.
Sec. XI. The obligations of a de-
ceased cestwi gue trust shall be made
a charge on the estates of his heir,
other than to such trust estate.
Sec. XII. An estate pur awter vie
may be devisable by will in writing
signed by the devisor and properly
witnessed; and if not devised, such
an estate to be a charge in the hands
of the heir, if it comes to him as spe-
cial occupant, in the same manner as
assets by descent; but where there is
no special occupant thereof, it shall
go to the executor or administrators,
and shall be assets in their hands.
Sec. XXIII excepts from the oper-
ation of the above soldiers and sea-
men following their vocations.
Sec. XXIV provides what courts
shall have charge of probate matters.
Sec. XXV excepts from the oper-
ation of the statute the estates of
jemes covert dying intestate.
1 Dundy v. Chambers, 23 Ill, 369;
Clark v. Graham, 6 Wheat. 577.
2 Id.
3 Id.
4. Where there is a near relation-
ship, acceptance will be presumed.
Guggenheimer v. Lockridge, 39 W.
Va. 457.
5 Colee v. Colee, 122 Ind. 109; 17 Am.
St. Rep. 345, note. After delivery, a
destruction or redelivery does not re-
convey. The only case to the con-
trary is Thompson v. Ward, 1 N. H. 1.
6 Such a delivery may be to take
effect upon a future event, as the
death of the grantor. McCalla v.
Bare, 5 Fed. Rep. 828; Weisinger v.
Cock, 67 Miss, 511; Smiley v. Smiley,
§ 636.] THINGS REAL. 1019
Jºegistration of title is the means prescribed by the state to
make known to the public the ownership of land and protect
purchasers and creditors, and is an essential provision to any
system of law permitting the transfer of estates by grant."
The possession of the land is important and is notice to the
world of whatever right the occupant may possess.”
This rule proceeds upon the idea that a purchaser must not
only acquaint himself with the recorded title,” but the actual
condition of the land. -
Description of Boundaries.—The granting clause of a deed
must not only designate with certainty the estate in the land,
but must describe the parcel with such certainty that its bound-
ary may be ascertained and marked upon the land.
This, under the system of land surveys and the modes of sub-
division of urban property, is not generally a difficult task, but
there are yet situations where boundaries cannot rest in abso-
lute visible designation by natural objects, or, as they are called,
monuments.” .
The subject of most dispute in the law of boundaries is that
relating to lands adjacent to water, and here there is a recog-
nized distinction between land bordering on the seas and bays
with headlands, in which there is a tide,' and land bordering
On lakes where there is no tide,” and land constituting the bank
114 Ind. 258; Shultz v. Shultz, 159 Ill.
654.
1As to the so-called Torrens acts, see
People v. Simons, 176 Ill. 165; State
v. Guilbert, 56 Ohio St. 791.
* Leneveve v. Leneveve, 3 Atk. 646;
1 Wes. 64; Ld. Eq. Cases, 109; Groff v.
$tate Bank, 50 Minn. 348. See Judge
Cooley's suggestions on investigating
a title. 1 Cooley's Blk., Int., xviii;
Fair v. Stevenot, 29 Cal. 486; 11 Mor.
Min. Rep. 11.
3 Id.; Knapp v. Bailey, 79 Me. 195;
1 Am. St. Rep. 295.
4 See Prof. Warvelle’s Treatise On
Real Property, which on the subject
of conveyancing is more thorough
and clear than any other modern
treatise. .
"The boundary is high tide or high-
water mark. Coburn v. San Mateo
Co., 75 Fed. Rep. 520; Shiveley v.
Bowlby, 152 U. S. 1; Hardin v. Jor-
dan, 140 U. S. 371; Revelle v. People,
177 Ill. 486.
8 In New England the size of the
lake or pond is important. If it is
larger than ten acres the boundary
is high water. Watuppa Co. v. Fall
River, 147 Mass. 548; Auburn v. U. W.
Co., 90 Me. 576. But generally the
Same rule as applies to the sea gov-
erns. Revelle v. People, 177 Ill. 486
(Lake Michigan); Sloan v. Beemiller,
34 Ohio St. 492. Non-navigable lakes
or ponds do not constitute bound-
aries. Lembeck v. Nye, 47 Ohio St.
336. But it is a disputed question
whether the lines of the fractional
subdivisions project directly into the
lake, or diverge at the rim and meet
at the center. Both contentions find
1020 THINGS REAIA.
[$641.
of running streams. In the sea and its arms, and navigable lakes
of such magnitude as to be recognized as navigable waters, the
bed of the lake below high-water mark is regarded as held in
trust by the state for the purpose of navigation, and the adja-
cent owner has therein no greater right than any other citizen."
The rule of the common law has been departed from in many
of the states in the Union, and the test of navigability in these
cases is whether the stream is navigable in fact,” and irrespect-
ive of the question of tide. Where the stream is susceptible
of practical navigation the owner's boundary extends to low-
water mark only.”
In all other cases of running streams the rule is that riparian
owners take to the center thread of the stream.”
Meander lines are not the boundary unless so expressly desig-
nated, but are lines run by the government surveyors for the
purpose of ascertaining approximately the amount of land in
fractional subdivisions which are prevented from being full
sections or quarter-sections by the presence of water or running
streams.”
DEVISE, WILL AND TESTAMENT are the different names for the
disposition of land to take effect on the death of the maker."
The validity and effect of wills depend on the law of the
situs of the property." -
The granting clause is to all intents and purposes like a
granting clause in a deed. There is a greater latitude taken
by the courts in construing a will, and more of an effort is
support, but the weight is with the
latter. See Hardin v. Jordan, 140 U.
S. 371.
6 Catlin Coal Co. v. Loyd, 180 Ill., 199.
7 Id.
A holograph will is one that is en-
1 On this subject of water bound-
aries, see Goff v. Congle (Mich.), 42
L. R. A. 161, where will be found a
thorough and exhaustive note show-
ing the various rules.
* Lamprey v. State, 52 Minn. 181;
38 Am. St. Rep. 541.
8 Chicago v. Van Ingen, 152 Ill. 624;
43 Am. St. Rep. 285; Hardin v. Jor-
dan, 140 U. S. 371.
*Id.; Eberts v. Eberts, 42 Mich.
409; Com. v. McClure, 167 Ill. 23.
5 Water Co. v. Com., 168 U. S. 371;
Goff v. Congle, supra, note.
tirely written, dated, and signed by
the testator. Wherever valid they
require no attestation. Perkins v.
Jones, 84 Va. 358; Harrison v. Weath-
erby, 180 Ill. 418.
A muncupative will is the declara-
tion of the testator in eactremis, i. e.,
in contemplation of immediate dis-
solution, before a sufficient number
of witnesses, and afterwards reduced
to writing. Scaife v. Emmons, 84
Ga. 619; 20 Am. St. Rep. 383.
IRevocation.— Marriage revokes a
will. Hulett's Estate, 66 Minn. 327.
§ 641.] Thisos krai. 1021,
made to carry out the intention of the maker; but the rule in
Shelley's case has been constantly applied by the courts, except
where modified by statute, although it is admitted that the in-
tent was generally thereby defeated. -
A will of course never presents a covenant. All such clauses
are called provisos or conditions, and, as in the case of a grant
by deed, the conditions affixed must not be altogether against
public policy; and an heir who would take an estate if there
were no conditions is not bound by conditions in a will of
which he has no notice."
Flection.—In case of parties who take beneficially in the
estate by operation of law, and are given an estate by will
which is inconsistent with that taken by operation of law, such
persons should be advised of the provisions of the will, and
their rights under these provisions, before they are put to an
election as to which estate they will take.”
It sometimes happens that a devisor grants an estate in land,
Or land in which he has no estate whatever, and in the same
grant makes a bequest or devise of his own property to the
Owner of this estate or property, and this act, after being made
known to the real owner of the land, drives him to an election
either to reclaim his own and renounce under the will, or to
affirm the provisions of the will and abide by it. After such
an act the title to his property has passed without any act on
his part, and in such a case it would be advisable for the dev-
isee of such other property to procure a release or quitclaim
deed from the prior owner, otherwise he would be left to a
circuitous mode of proof. The will constitutes, however, color
Of title.”
Jºecutory Devises.—Executory interests, however created, are
such as take effect at some time in the future, measuring
from the time when the document takes effect.
An executory devise is a devise 4 of an estate which shall not
west at the time of the death of the devisor, i. e., when the will
1 Shackleford v. Hall, 19 Ill. 216. 1 Lawy. Ed. 447; Bispham's Prin.
*Haverland v. Willetts, 141 N. Y. Eq., sec. 304.
35. The burden is on those who af- 4 It must be in a will, and the same
firm an election. Cox v. Rogers, 77 things are not allowed by deed which
Pa. St. 165; Ward v. Ward, 134 Ill. 417. are permitted in wills. 2 Cooley's
* Cowdrey v. Hitchcock, 103 Ill. Blk. (4th ed.) 172.
262; Adsit v. Adsit, 2 John. Ch. 448;
1022 THINGS REAL. [$ 641.
becomes operative, but in this particular it is identical with a re-
mainder; and, as we have seen, a remainder, whether it be con-
tingent or vested, must follow a freehold estate, and that at all
events must west at the termination of that estate, and every es-
tate which has both these features must be a remainder. Any
Other permissible estate under the rules against creating estates
to begin in the future” (perpetuity) must have some distinctive
feature or features which distinguish it from a remainder.
So, an executory devise is sometimes defined as a limitation
by will of a future estate or interest in land which cannot, con-
sistently with the rules of law, take effect as a remainder.”
But this is a mere negative definition. The same author,
however, furnishes a definition really descriptive of the nature
and essentials of this estate.
“It follows that every devise of a future interest which is not
preceded by an estate of freehold created by the same will
(whether consisting of one or more testamentary papers), or
which, being so preceded, is limited to take effect before or after,
and not at, the expiration of such prior estate or freehold, is an
executory devise.” “ The devise will be held a remainder if
possible. -
Title by Administration.— Administration is sometimes
spoken of as a means of transferring title, but the title is not
transferred by administration or probate proceedings.
Title vests upon death by operation of the law of descent;
by devise, by virtue of the will.
Administration and probate are judicial proceedings having
for their purpose and sole function the distribution of the es-
tate according to the terms of the title, whether that be intes-
tate or testate, subject to the rights of third persons who may
be interested or have claims against the estate.”
1 McArthur V. Scott, 113 U. S. 359.
2 Pennington v. Pennington, 70 Md.
418.
3 Jarman on Wills (5th ed.), 483.
4 Id. The happening of the con-
tingency or event upon which the
vesting of the executory devise de-
pends operates upon existing vested
*The proceedings are wholly statu-
tory, and each state has its own pe-
culiar practice. Only in a few in-
stances are they closely similar, and
almost every state has a local book
on the procedure. The subject will
receive only such treatment as is re-
quired to point out the distinctive
estates as does a conditional limita-
tion. Pennington v. Pennington, 70
Md. 418.
features of the law of jurisdiction
and procedure.
PART III.
*mmº
THE LAW OF ACTIONS.
COURTS, REMEDIES AND PROCEDURE.
CHAPTER XXXI.
TAW OF ACTIONS.
“Experience has shown that the liberty of the subject, with which we
are intrusted, is involved in the accuracy in point of form of legal pro-
ceedings. For that reason accuracy is required; and, in that view of it,
it is no paradox to say that form becomes substance.” — CoI,ERIDGE.”
SEC. 642. Scope of the Subject.—The next subject in natural
order is “The Law of Actions,” embracing within this great
topic the judicial department with its various branches of juris-
diction; the elements of causes of action; the established forms
of actions; the proper parties to them; the methods of allega-
tion; the rules of evidence, and the modes of procedure.
Manner of Treatment.— It is proposed in this part of the book
to present the underlying principles of the subject, constituting
an introduction to the law of procedure, together with a mere
outline of its various branches, it being the intent to treat these
subjects more at large in separate volumes.”
The Importance of Private Rights.- The immense volume
of commerce; the huge corporations which combine a multitude
of natural energies in one artificial being; the vast system of
government; the great affairs of state, tend to obscure the real
end and aim of government, and lead some to suppose that the
most important maxim in the law is that which is so frequently
opposed to the struggle for individual right, salus populà sº-
prema lea.” *
So in a proper and enlarged sense it is; but “the blessings
of liberty” can be enjoyed only by natural persons (sometimes
1 Howard v. Gossett, 10 Adol. & El.
382; 59 E. C. L. 358.
2 In the meantime any topic can
be studied in the works on Equity
(Merwin, Bigelow, Bispham, Adams,
Story, etc.), and much of it the au-
thor has presented in his edition
of Stephen's Pleading (Andrews’
Stephen’s Pleading).
3 That regard be had to the public
welfare is the highest law. Broom’s
Legal Max. 1. “Sir William Black-
stone said: ‘So great is the regard of
the law for private property that it
will not authorize the least violation
of it, no, not even for the general
good of the whole community. Be-
sides, the public good is in mothing
more essentially interested than in
the protection of every individual’s
private rights as modeled by the mu-
nicipal law.’” 1 Blk. Com. 139, quoted
by Comstock, J., in Wyneheimer v.
People, 13 N. Y. 387.
1026 LAW OF ACTIONS. 1$ 643.
filtered through corporate franchises); and if the rights of in-
dividuals are ignored or made subordinate to anything else,
the order of things is reversed and the principal end of the con-
stitution lost sight of."
SEC. 643. The Remedial a Branch of Constitutional Law.”—
The fundamental principle of our jurisprudence, obligating the
individual to make reparation and the public authority to fur-
inish protection and reparation, rests upon the ancient precepts
of organized society, “to live honestly, to injure no one, to
zender every one his due.” *
The latter clause of this maxim applies not only to the indi-
vidual, but constitutes one of the fundamental maxims of dis-
tributive justice.* - -
The reciprocal obligation between the government and the
governed rests upon like principles of natural reason, and is
expressed in the ancient precept, “protectio trahit subjectionem,
et subjectio protectionem,” (protection draws with it subjection,
and subjection protection),” a maxim which, although recognized,
never became securely established in our system of government
until the Fourteenth Amendment extended to all persons equal
protection of the law.
It is now restored to our system as a rule of conduct, restrain-
ing magistrates and people alike, and protecting the humblest
1 Sharswood’s Błk. 127, note; 1 the foundation of actions for wrongs;
"Cooley's Blk. (4th ed.) 126, note; State
v. Cunningham, 81 Wis. 499.
2 This aspect of the case is not gen-
erally made prominent. Here is
treated the judicial branch of gov-
«ernment and the protection of civil
liberty.
3 Inst. 1, 1, 3; Sandars' Jus. 68, sec. 3.
“It has been well said that the lia-
bility to make reparation for injury
rests not upon the consideration of
and it rests upon and grows out of
the relations which men bear to each
other in the framework of organized
society.” Rich v. N. Y. Cent. & H. R.
R. Co., 87 N. Y. 399.
4 Justitia est constans et perpetua,
voluntas jus swum cuique tribuendi—
justice is the constant and perpetual
wish to render every one his due.
Inst. 1, 1, 1; Sandars' Jus. 67, Sec. 1;
Holden v. Hardy, 169 U. S. 388.
5 Calvin’s Case, 7 Co. 5; Broom's
any reciprocal obligation, but upon
an original moral duty enjoined upon
every person so to conduct himself,
“or exercise his own rights, as not to
Max. 78. “The very essence of civil
liberty certainly consists in the right
of every individual to claim the pro-
injure another. Kerwhacker v. C.,
C. & C. R. Co., 3 Ohio St. 172; 62 Am.
Dec. 246. Whatever its origin, such
legal duty is uniformly recognized,
and has been constantly applied as
tection of the laws whenever he re-
ceives an injury. One of the first
duties of government is to afford that
protection.” Marshall, C. J., in Mar-
bury v. Madison, 1 Cranch, 163.
§ 643.]
LAW OF ACTIONS. 1027 .
B \
person against the greatest state, or any or all departments :
thereof."
A corollary of these great fundamental obligations is the
maxim enjoining the action of the court, ubi jus ibi remedium,
(there is no right without a remedy), the sense of which is bet-
ter expressed in our language, the right is not perfect unless
the means for its protection is also perfect;” and it is the duty
of courts to devise the means of redressing wrongs.”
The end of the constitution to establish justice is accom-
plished if an enlightened spirit guides the court in the applica-
tion of these maxims; and no man is required to be, nor allowed,
except in a limited degree,” to be his own protector and avenger,
lest anarchy destroy organized society; " and it follows that
tribunals must be established for this purpose.
The Wature of Judicial Power.— A proper conception of the
nature of judicial authority is an essential prerequisite to an
understanding of the law of actions and procedure.
Judicial power presupposes the existence of a system of law
and an established government of which the judicial branch
is a part."
It recognizes the province of the legislature to make the
law, and that its function is fulfilled in construing, interpret-
ing, ascertaining and applying existing law."
Judicial power is understood to be such as is exercised ac-
cording to the ordinary methods of courts of justice, and in-
cludes the power to hear the matter, render judgment and
award an execution.”
nois seems to have been unconscious
of this ancient principle, abrogating
1 Hurtado v. California, 110 U. S.
536; Hovey v. Elliott, 167 U. S. 409.
*Ewell v. Dagg, 108 U. S. 149. See
State of Georgia v. Brailsford, 2 Dall.
402; Marbury v. Madison, 1 Cranch,
137.
8 Broom’s Max. 79; Edwards v.
Rearzey, 96 U. S. 565.
*Recaption, redress by act of party.
° Int. St. Com. Com. v. Brimson, 154
TJ. S. 487.
° Luther v. Borden, 7 How. 1; ante,
Ch. XII.
7 Merrill v. Sherburne, 1 N. H. 199;
Galesburg v. Hawkins, 75 Ill. 148.
The present supreme bench of Illi-
a rule of law which had been uni-
formly applied by that court for half
a century with the remark, “The
doctrine of comparative negligence
is no longer the law of this court.”
Lanark v. Dougherty, 153 Ill. 163–65.
8 Int. St. Com. Com. v. Brimson,
154 U. S. 447–484. The Courts Can-
not exercise, nor be compelled to ex-
ercise, any other power than judicial.
See illustrations. Id.; State of Geor-
gia v. Brailsford, 2 Dall. 403; Lawy.
Ed., note.
1028 LAW OF ACTIONS. [$ 643.
A thorough understanding of the principles of separation,
and a complete application of them, did not follow immedi-
ately upon the adoption of the federal constitution, and sev-
eral very striking instances of the exercise of what would now
be termed purely judicial power by the legislature have been
sanctioned because practiced from time immemorial."
The change was brought about slowly, but may now be said
to be thoroughly established, and the doctrine that the legis-
lature may exercise judicial power in ordinary matters has no
place in American jurisprudence.”
A definite and orderly proceduré is clearly essential to any ac-
tion properly judicial, and to the idea of due process of law.
It was the doctrine of the common law that “the judges are
appointed to administer, not to make, the law, and that the ju-
risdiction with which they were intrusted has been defined and
marked out by the common law or acts of Parliament. It is
moreover a principle consonant to the spirit of our constitu-
tion, and which may be traced as pervading the whole body
of our jurisprudence, that optima est lea, quae minimum relinquit
arbitrio judicis, optimus judeº qui minimum sibi’’ (that system
of law is best which confides as little as possible to the discre-
tion of the judge, that judge the best who relies as little as
possible on his own opinion).”
A definite issue, that is, matters of fact alleged on one side
and admitted or denied on the other, or wholly unanswered,
is also essential, whether the proceeding is at law or in equity,
under any form of procedure recognized in the United States.”
A written record is essential to a valid judgment or decree,
or, in other words, to due process. No right can be based upon
judicial action not evidenced by a record.”
I Calder v. Bull, 3 Dall. 386; Liv- uniform system of law.” Broom's
ingston v. Moore, 7 Pet. 547.
2 Commonwealth v. Warwick, 172
Pa. St. 140.
3 “Further, be it remembered, that
‘there is no court in England which
is intrusted with the power of ad-
ministering justice without restraint.
. . . The proceedings of all courts
must take a defined course, and be
administered according to a certain
Max, (8th ed.) 84; Master v. Miller, 6
Term R. 344. See Hagar v. Reclama-
tion Dist., 111 U. S. 707; Hovey v.
Elliott, 167 U. S. 409; Holden v.
|Bardy, 169 U. S. 389, 390.
4 Reynolds v. Stockton, 140 U.S. 254;
Windsor v. McVeigh, 93 U. S. 274;
N. O. W. Co. v. N. O., 164 U. S. 471.
5 Munday v. Vail, 34 N. J. L. 418.
§ 643.] Law of Actions. 1029
Changes in Procedure.—The courts and the legislature may
change the mode of procedure, provided existing cases are not
prejudicially affected, and provided also there is preserved a
fixed and orderly method conformable to the spirit of our con-
stitution." :
Changing the constitution of the court is also within the au-
thorized power of the legislature, and existing causes must be
submitted to the new tribunal.” *
So it may be said that, with some few exceptions recognized
by immemorial customs of our people, nothing is due process
except it be judicial process, and nothing is judicial process
which does not involve a deliberate hearing after due notice
and opportunity to be heard, and according to regular rules of
procedure.” It may be a summary proceeding if sanctioned by
long usage.”
Independent Tribunals—Courts [Ante, ch. XII].-Blackstone
defines a court to be a place where justice is judicially admin-
istered, but it is our endeavor to emphasize the idea that a
court is not completely described unless you embrace a view
of the tribunal, the place of sitting, and procedure judicial in
nature. -
It was provided in Magna Carta that the common pleas,
which was then the great court for ordinary actions, should
not follow the person of the king, but should be holden in some
certain place. . .
No process would now be considered regular which did not
designate either a court having a fixed and definite place of
sitting or the place where the tribunal appointed by law would
enter upon the hearing of the matter, and no hearing, except
after due assembling at that place, can be regarded as regular.”
Motice of hearing or process, as it is called, either actual or
constructive, is, at least in all adversary actions, absolutely essen-
tial. Without it all action is void."
1 Iowa Cent. Ry. Co. v. Iowa, 160 41n re Clark (Conn.), 28 L. R. A.
TU. S. 389. 242.
2 Duncan v. Missouri, 152 U. S. 377. 5 Thatcher v. Powell, 6 Wheat. 125;
8Leeper v. Texas, 139 U. S. 462; Iowa Cent. Ry. Co. v. Iowa, 160 U. S.
Iowa Cent. Ry. Co. v. Iowa, 160 U. S. 389; Holden v. Hardy, 169 U. S. 388.
393; Murray v. Hoboken L. Co., 18 & But the service of notice cannot,
EIow. 274; County of Santa Clara v. in all cases, e.g., probate proceedings,
Pacific R. Co., 18 Fed. Rep. 420. be said to be jurisdictional. Mohr
1030 LAW OF ACTIONS. [$ 644.
SEC. 644. Constitution and Functions of Courts.--It is quite
commonly said that it is the business of the courts to dispense
justice, but this is true only in a limited sense.
The courts are not authorized to seek out causes of action
and institute proceedings. -
They cannot set themselves in motion, and can only act when
a case or controversy is submitted to them in the method pro-
vided by law." -
Constitution of Court.—A court may be composed of a single
individual or of several officers. No efficacious court has all
the remedial powers which may be invoked by a suitor con-
ferred upon a single individual. ~.
There are in them all at least two officers exercising different
classes of powers. . •
The judicial magistrate, called the judge, presides over the
court proper, and in the courts of general jurisdiction exercises.
only functions strictly judicial.
The ministerial power is exercised either by the magistrate
himself, as in the case of justices of the peace, issuing process.
and keeping his record, or by a separate officer called the clerk
of the court. --
In the exercise of these ministerial duties little or no discre-
tion is contemplated.
The duty of the clerk is to issue process and to perform his
duties when the conditions contemplated by the law exist.
The clerk of the court is not a collector. He is not author-
ized to accept money in satisfaction of judgments.” His duty
is to issue process and preserve the records of his court.
The emecutive branch of the court is filled by officers termed
sheriffs, deputy sheriffs, bailiffs, and, in magistrates’ courts,
constables.
The sheriff is no longer a judicial officer, although incident.
to his office are still preserved duties judicial in their nature.
Attorneys and Counselors.--Besides these officers, directly
and necessarily a part of the court, there have been from time
v. Manierre, 101 U. S. 417. Cf. Mohr 1 State v. Stanton, 6 Wall. 50; Int.
v. Tulip, 40 Wis. 60; and a judgment State Com. Com. v. Brimson, 154
may be authorized fixing the status U. S. 457.
of property which will bind unborn 2 Seymour v. Haines, 104 Ill. 557.
parties. Loring v. Hildreth, 170 Mass.
328; McArthur v. Scott, 113 U. S. 340.
§ 644.] LAW OF ACTIONS. 1031.
immemorial admitted to participate in the transaction of judi-
cial business, men supposed to be specially learned in the law,
and for that reason able to assist the court and the parties in
the orderly administration of justice. These are termed, as a
class, lawyers, of which there are many species—attorneys, so-
licitors, barristers, advocates, proctors in admiralty, etc."
A strong presumption favors their authority to act, as they
have acted on the record.”
The relation of attorney and client is one having peculiar
ethics as between the counsel and the court,” and between the
counsel and the client.”
One holding himself out as counsel impliedly represents that
he is ordinarily learned and skilful in the profession.
An action lies against him if he fails in this regard, or is
guilty of negligence or fraud in the discharge of his duty.
JHe has no right to have any personal interest which may
conflict with the rights and interests of his client.
So jealous is the law of the integrity of counsel, and so im-
portant is it deemed to preserve the rights of the client, that
every transaction between the attorney and client, outside of
the original contract of retainer, which gives to the attorney
1 Their offices are considered as in
the nature of property rights, which
cannot be taken away without due
process of law. See In re Sergeants
at Law, 6 Bing. N. C. 187; 37 E. C. L.
338; Garland, Ex parte, 4 Wall. 333.
For an elaborate discussion of the
grounds for disbarment of attorneys,
and the proceedings in such cases,
see In re Wall, 12 Fed. Rep. 814, note;
also State v. Beattie, 137 Ill. 553.
2. Where the record fails to show
that an attorney had no express au-
thority to enter a consent decree, by
which a definite fee was given him,
his authority will be presumed.
Schmidt v. Oregon Gold Mining Co.
28 Oreg. 9. But this presumption may
be rebutted. Great West. M. Co. v.
Woodmas, etc. Co., 12 Colo. 46; 13 Am.
St. Rep. 204.
3 In the Matter of Aiken, 4 Barn.
& Ald. 47. The court has plenary
power over counsel as to their con-
duct in cases actually pending. An-
derson v. Bosworth, 15 R. I. 443; 2 Am.
St. Rep. 910.
4 State v. Coste, 36 Mo. 437; Stewart
v. Flowers, 44 Miss. 518; 7 Am. Rep.
707. Clients cannot substitute at-
torney without leave of court. Chi-
cago Pub. Stock Ex. v. McClaughry,
50 Ill. App. 358. Attorneys have liens
in proper cases upon the fruits of
their labor. Stewart v. Flowers, 44.
Miss. 518; 7 Am. Rep. 707. They may
provide for a contingent fee (Wylie
v. Coxe, 15 How. 415; McPherson v.
Cox, 96 U. S. 416), and secure it by
an assignment of a portion of the
cause of action. North Chi. St. Ry.
v. Ackley, 171 Ill. 100. A contract
which secures to an attorney his fee
is good, but a clause providing that
no settlement shall be made except
with attorney’s consent is void. Id.;
Boardman v. Thompson, 25 Iowa, 505;
key v. Vattier, 1 Ohio, 132.
1032 LAW OF ACTIONS. [$ 645
any interest in the matter upon which he is consulted, is pre-
sumed to be voidable," and the burden is cast upon the attorney
to prove the fairness of the contract and the adequacy of the
consideration.
SEC. 645. Classification of Courts — Of Jºecord and Wot of
Jºecord.—Courts were originally classified into courts of record
and courts not of record, but the classification at the present
time is of little if any practical utility, for the reason that there
is no court which is classed among the courts that is not obliged
to keep a record of its proceedings; and the record of any court,
whether of general or special jurisdiction, imports verity.” *
A justice court is commonly said not to be a court of record,
but for many purposes it is to all intents and purposes as much
a court of record as any court.” 4.
Commissioners of highways, boards of supervisors and many
other special tribunals exercise judicial power and are embraced
within the general term “courts.” These are not courts of record,
though a record of their proceedings is a necessary founda-
tion to a judgment or finding, the principle being that a public
or official act must be of record.”
General and Special Jurisdiction.— By Blackstone and most
other English writers of an early date, courts were classified as
superior and inferior.”
This was logical enough when taken in connection with the
reason for classifying magistrates into superior and inferior, the
latter being those who derived their jurisdiction from theformer;
but no such classification is allowable in this country, where the
source of all jurisdiction is the same, and the only sense in
which one court can be said to be superior and the other in-
ferior is that the law has invested the so-called superior court
with appellate or supervisory jurisdiction.
The classification does not suggest the most important prin-
ciple which marks the distinction between courts.
The true classification of courts in the United States is into
1 Boardman v. Thompson, 25 Iowa, 3 Hendrick v. Whittemore, 105
505; Key v. Vattier, 1 Ohio, 132; Mass. 28; Ellsworth v. Learned, 21
Wylie v. Coxe, 15 How. 415; Hutch- Vt. 537; Andrews' Steph. Pl. 234.
inson v. Worthington (Court of App., 4 Chaplin v. Com., 126 Ill. 264.
D. C.). 5 Crepps v. Durden, 2 Sm. Ld. Cas.
23 Cooley's Blk. (4th ed.) 24; Folger 1107.
v. Col. Ins. Co., 99 Mass. 267; 3 Am.
Corp. Cas, 367.
§ 645.] LAW OF ACTIONS. 1033
those of general jurisdiction and those of special, limited juris-
diction." -
The real reason and the important distinction between the
two classes of courts consists in the presumption in favor of
jurisdiction in the one class of courts;” that is, a court of gen-
eral jurisdiction is presumed to have acquired jurisdiction from
the fact of acting.”
In the application of this principle the judgments of courts
of general jurisdiction cannot be questioned collaterally except
for fraud; and when it is shown that the tribunal of special
jurisdiction has actually acquired jurisdiction, the same pre-
sumptions are indulged in favor of all subsequent proceedings.
The jurisdiction here intended, when speaking of general or
special jurisdiction, is that of the subject-matter of the suit; *
and the jurisdiction intended when the presumption is in-
dulged is jurisdiction of the person. The former depends upon
the law, the latter upon the fact of regular proceedings as to
notice.
A court which as to its ordinary business is a court of gen-
eral jurisdiction may be given a special statutory jurisdiction,
and in such cases the general business of the court is immaterial,
but regard is had to the nature of the jurisdiction exercised.”
As to whether a justice of the peace is a court of general or
special jurisdiction within the meaning above explained, there
is a difference of decision in different states, and the only safe
course is to determine the state of decision in the particular
state," having reference also to the nature of the act in question.
A justice of the peace exercises his jurisdiction largely ac-
cording to the course of the common law, and simply because
he does not have jurisdiction Over all matters is no reason for
1 Obert v. Hammel, 18 N. J. L. 73;
Kempe’s Lessee v. Kennedy, 5 Cranch,
173; Von Kettler v. Johnson, 57 Ill.
110.
2 Grignon v. Astor, 2 How. 319, 341.
3 The United States circuit courts
have not general jurisdiction. Ken-
dall v. United States, 12 Pet., at p. 616.
4 Harvey v. Tyler, 2 Wall. 329;
Grignon v. Astor, supra; McPherson
v. Cunliff, 11 Serg. & R. 422; 14 Am.
Dec. 643; Harris v. Lester, 80 Ill. 318;
Van Dorn v. Horton, 1 Dutch. 208.
5 G. & C. N. Ry. Co. v. Pound, 22 Ill.
399. See Harvey v. Tyler, 2 Wall. 328.
6 That such a court is not one of
special jurisdiction, see Obert v. Ham-
mel, 18 N. J. L. 75; Russell v. Work,
35 N. J. L. 316; Hall v. Cole, 23 N. J.
L. 125; McCormick v. Sullivant, 10
Wheat. 192; Grignon v. Astor, 2 How.
341; Williams v. Ball, 52 Tex. 603; 36
Am. Dec. 730; Morrow v. Weed, 4
Iowa, 77.
1034 LAw of ACTIONs. [$645.
classifying these courts as those of inferior or special jurisdic-
tion." t
Presumptions as to Jurisdiction.— Such courts as are re-
garded as courts of general jurisdiction are favored with the
presumption, prima facie at least, from the mere fact of acting,
that they have jurisdiction of the person proceeded against.”
When the record is silent as to the steps taken to bring the
parties into court, the question of jurisdiction is open for alle-
gation and proof;” but when the record contains a recital of the
facts relating to the service of process, or there is a specific
finding of due service, etc., it is then a matter of some doubt
as to whether this recital may be contradicted in a collateral
proceeding.
The opinion is quite general that, coupled with an allegation
of fraud, the recitals may be contradicted, and there seems to
be a growing tendency to allow the fact to be shown that the
party was not actually brought within the jurisdiction of the
court, irrespective of a specific finding of jurisdiction.* -
Jurisdiction is the power and authority of a tribunal to hear
and determine the matter in dispute between parties, of the
character and residence of the disputants, and to afford the re-
lief asked.
Jurisdiction has relation to (1) the subject-matter of the liti-
gation, (2) the parties litigant, and (3) the particular process,”
8. e., character of relief asked.
While jurisdiction of the process may fall within the general
bounds of the subject-matter, it is not without utility to distin-
guish between the general subject-matter and jurisdiction of
the particular relief asked."
1 Hendrick v. Whittemore, 105 Mass.
28; Ellsworth v. Learned, 21 Vt. 537;
Andrews’ Steph. Pl. 234. A judgment
of a justice of the peace is prima
facie evidence of jurisdiction. Shum-
way v. Stillman, 4 Cow. 292; Id., 6
Wend. 447. Contrary, that the court
is a mere creature of statute and its
mode of acquiring jurisdiction must
be strictly followed, Robinson v. Har-
lan, 1 Scam. 237; Oakley v. Aspin-
wall, 3 N. Y. 563. And it has been
said that a justice of the peace has
no civil jurisdiction by the common
law. Meek v. Pearce, 19 Wis. 300.
2 Ferguson v. Crawford, 70 N. Y.
283; 26 Am. Rep. 589; Cooper v. Sun-
derland, 3 Iowa, 123; 66 Am. Dec. 152.
8 Ferguson v. Crawford, Supra.
Compare Cook v. Darling, 18 Pick.
393; 35 Conn. 190.
4 Cooper v. Sunderland, Supra.
5 Cooper v. Reynolds, 10 Wall. 308.
6 Grummon v. Raymond, 1 Conn.
40; Gurnee v. Tubbs, 37 Me. 133.
§ 645.] LAW OF ACTIONS. 1035
Original and Appellate Jurisdiction.— The supreme court of
the United States and of all the states have, by the constitu-
tion and statutes, original and appellate jurisdiction, and the
system of judicature in all the states allows an appeal from the
lower court to the circuit courts, or courts of common pleas,
and from thence to the appellate tribunals, and so on, according
to the nature of the subject-matter and the question involved,
so that the most trifling property or personal right may find
its way from the justice of the peace to the supreme court of
the United States."
Original and appellate jurisdiction are not always clearly dis-
tinguished.
The authority to take original cognizance of a case is clearly
enough an Original jurisdiction, but a case may appear to be
one brought for the first time, and outwardly, to all intents
and purposes, seem a new suit, while in fact the jurisdiction is
not original but appellate, and hence, perhaps, may arise some
confusion.” •
The true distinction seems to be in this: that a suit is prop-
erly original when its object is to take cognizance of a disputed
matter, hear and determine the respective rights of the parties,
and enter a judgment and execute the same without reference
to the action of any other tribunal; whereas a suit which has
for its object a direct interference with the further proceed-
ings by another court” or magistrate in reference to a matter
in which he is proceeding, or which is supervisory of such ac-
tion, or has for its object the correction of alleged errors therein,
is in its nature appellate, and this irrespective of the form the
action may take.
1 Recently a case involving the
right to tax a dog began before the
magistrate in New Orleans, and illu-
mines the reports of the supreme
court of the United States. So the
Dred Scott case had its inception be-
fore a magistrate.
2 “Appellate ’’ is a technical term
xlerived from the civil law. Feder-
alist, No. 81; Wiscat v. Danehy, 3
Dall, 327; Justices v. Murray, 9 Wall.
274. Appellate jurisdiction in its larg-
est sense includes the right of super-
intending inferior tribunals. See Mar.
bury v. Madison,1 Cranch, 137 (habeas
corpus); Ex parte Siebold, 100 U. S.
374; Ex parte Virginia, id. 339 (pro-
hibition); In re Chetwood, 165 U. S.
461; People v. Horton, 169 Ill. 201.
*The apparent exception to this
language, which is furnished by the
jurisdiction of a court of equity to
enjoin the further prosecution of a
suit, is not in fact an exception, be-
cause the injunction is not against
the court proceeding any further,
but against the party, and is strictly
original and not appellate.
1036 LAW OF ACTIONS. [$646.
SEC. 646. Subjects of Judicial Action.—A Case, Controversy,
or Proceeding.—A cause for action by the court arises when a
case, or controversy, or subject-matter, of which the court is
authorized by law to take cognizance, is submitted to the court
for its action in the manner provided by law."
The cause of action which belongs to the party is sometimes
said to be one relating to a mere private, personal or prop-
erty right; * but this is no longer the rule, as the controversy
need not be one of rights of property or proprietary rights, but
may relate to the political rights of the citizen or the integ-
rity of the system of government in which the citizen has an
interest.”
Classes of Action.— Causes of action may be classified from
several different standpoints, as on account of the relief to be
attained, the subject-matter of the suit, the character of the
person prosecuting, or the person or thing proceeded against.
Actions in Personam.—The most common action is one where
one person, natural or artificial, brings suit against another per-
son, either for the recovery of some specific thing or right, or
for damages. Such an action is both adversary and ºn personam,
as distinguished from another class, which are called proceed-
ings in rem.*
Proceedings in rem are generally non-adversary, but not
always so, and this is not the distinguishing feature. In these
latter, the suit, although ultimately affecting the rights of per-
sons in the subject-matter of the proceeding, is primarily to
determine the status of the subject-matter, be it of a person or
of a thing, or to subject specific property to an obligation with
no attempt to recover a personal judgment.”
1 State v. Cunningham, 81 Wis. 499;
Int. St. Com. Com. v. Brimson, 154
TJ. S. 457.
2 Id.; Ashby v. White, Ld. Raym.
938; 1 Sm. Ld. Cas. 473; Blair v.
Ridgeley, 41 Mo. 63; Wells v. Bain,
75 Pa. St. 39. See Davenport v. Clover-
port, 72 Fed. Rep. 689.
3 Even the highest courts indulge
in expressions much too broad, and
which will mislead the tyro. In
In re Sawyer, 124 U. S. 213, it is said,
quoting Sheridan v. Colvin, 78 Ill.
237, which latter case quotes Kerr on
Inj., that equity only deals with
property and civil rights. Mani-
festly the jurisdiction over divorce
and the parens patria are over-
looked. Aymer v. Roff, 3 John. Ch.
49.
4 Woodruff v. Taylor, 20 Vt. 65.
* Administration of estates. Scott
v. McNeal, 154 U. S. 34. Probate of
wills. McArthur v. Scott, 113 U. S.
340. Attachment of property. Wood-
ruff v. Taylor, 20 Vt. 65; Cooper v.
Reynolds, 10 Wall. 308. Divorce pro
ceedings are both adversary and in
§ 647.] LAW OF ACTIONS. 103'ſ
In a non-adversary action or proceeding in rem, jurisdiction
of the court is obtained by acquiring jurisdiction over the thing
by petition or document requiring the court to act on the sub-
ject-matter; and notice to the parties interested is not jurisdic-
tional, but an exercise of jurisdiction, and is not of the same
vital importance as is the notice or process by which jurisdic-
tion is obtained to render a judgment against a particular per-
SOIl. * *
The elements of a cause of action are the deprivation or in-
fringement of a right, and a detriment or damage to the plaintiff.
Mere damage by the act of another is not of itself sufficient
generally to sustain an action, but there should be an omission.
of duty in connection with the damage. A mere accident is
not the basis of a suit, for, unless there is fault, an injury must
lie where it falls." * *
Under the constitutional provision that private property shall
not be taken for public use except on just compensation, the
obligation to compensate is violated by the mere failure to com-
pensate when the damage is done; and it is no answer to an
action of this character that the damage was authorized —
that all the proceedings which resulted in the damages were
taken in strict compliance with law.
It is not necessary that the extent or amount of the injury
can be measured or compensated in money. The law does
not measure amounts where a right is infringed, and in such
matters the maxim de mºnºmis non curat lea, has no applica-
tion.” - - ". . .
SEC. 647. I'guitable Jurisdiction and Remedies.”—From the
remotest time a distinction has been taken between two meth-
*
rem. In re Kimball, 155 N. Y. 62.
See Interstate Divorce. A state nec-
essarily has power to regulate the
status of property within its juris-
diction. Woodruff v. Taylor, supra;
Lutz v. Kelley, 47 Iowa, 309; Arndt
v. Griggs, 134 U. S. 316; Pennoyer v.
Neff, 95 U. S. 714.
1 Pasley v. Freeman, 3 T. R. 55;
Chasemore v. Richards, 7 H. L. Cas.
349; Big. Ld. Cas. Torts, 524. It is some-
times said that the act causing the
injury must be unlawful (Gov. etc.
Co. v. Meredith, 4 Term, 794), but this
ſ
is exploded. Eaton v. B. & C. Ry., 51
N. H. 405; 12 Am. St. Rep. 147; Rigney
v. Chicago, 102 Ill. 64. A court cannot,
because of individual hardship, en-
force mere moral obligations (Gard
v. Gard, 108 Cal. 19), unless mingled
in some way with legal rights. Rich
v. N. Y. C. & H. R. Ry., 87 N. Y. 382;
Andrews' Steph. Pl. 29; Bank v.
Waterman, 26 Conn. 324.
2 Ashby v. White, Ld. Ray. 938;
Blair v. Ridgeley, 41 Mo. 43.
3 The classification of remedies into
those by the act of the party and by
1038 LAw of ACTIONs. [$ 647.
ods granting relief and protection to suitors applying to the
sovereign power, the one termed equitable and the other legal.
In no system of jurisprudence prior to the British was there
so complete a separation as was attained at one period of the
JEnglish law. The conception and definition of equity once
adopted in the English law was that given by Aristotle: “Aqui-
Żas est correctºo justae legis, qua parte deficit Quod generałłm,
lata est” (equity is the correction of that wherein the law by
reason of its universality is deficient); but this definition no
longer conveys the idea of equity or equity procedure.
Equity was then considered as a reservation of authority or
jurisdiction not embraced within the law promulgated, and
hence the ancient idea that law and equity were separate
systems.”
formerly equity exhausted itself by directing a defendant
to do this or do that, without any power to execute in case of
a refusal or failure on the part of the party. So it became a
maxim that equity acts ºn personam,” and that equity cannot
affect legal titles; * and these maxims survive to the present
day, modified only to the extent that courts of equity will
administer the relief by executing the order of the court in
case of refusal; and equity may now award damages, while
formerly it could not.
The law court, on the other hand, did not seek directly to
operation of law is not of great util-
ity. Recaption, re-entry and abate-
ment of nuisance, and self-defense,
are samples of the former; and while
these rights of the party are not to
be ignored or overlooked, they are
not in strictness a part of the law of
remedies, actions or procedure. See 3
Cooley's Blk. (4th ed.), 3–5, n. One may
enter the inclosure of another to re-
take his own, provided it is peaceably
done (Richardson v. Anthony, 12 Vt.
273), and subject to his liability to
make good the damages. Gardiner v.
Rowland, 2 Ired. (N. C.) 247; Sheldon
v. Sherman, 42 N. Y. 484; 1 Addison,
Torts, $ 375.
1 Stowel v. Zouch, 1 Plowd. 375.
*To administer it (equity jurisdic-
tion) through the ordinary powers of
a common-law court is impracticable,
and hence, where there exists no
provision in the jurisprudence of a
country for its full exercise, the con-
sequence must ever be that after the
common-law courts have engrafted
into their practice as much as can
there be assumed, the legislature is
Compelled to exercise the rest, or
leave a large space for the appropri-
ate field of judicial action unoccu-
pied.” Livingston v. Moore, 7 Pet,
at p. 517. -
8 See Andrews' Steph. Pl. 20; Gard-
ner v. Ogden, 22 N. Y. 327; Hart v.
Sansum, 110 U. S. 151.
4 See In re Sawyer, 124 U. S. 200. '
§ 647.] LAW OF ACTIONS. 1039.
compel the party, but adjudicated the title, placed the claim-
ant in possession, or awarded damages and issued execution
against the person and property of the defendant; and while
all legal actions of this nature were in personam, the process
was not exhausted upon the person.
Eguity Older than Zaw – Eguity the Germ of Judicial Ac-
tion.—From the fact that in England the law courts were es-
tablished and had adopted a regular procedure before the cre-
ation of a separate court of chancery, an impression obtains
that law is older than equity, but the reverse is the actual
order of things."
Lord Bacon affirms, “You shall find the observation true,
and almost general in all states, that their law-givers were
long after their first kings, who governed for a time by nat-
ural equity without law.”
Equity as a Zaw Maker.—A great many of the positive
rules of law are first worked out by equity. Wilson expresses
this idea very clearly: *
“In rude ages the first decisions of judges arose probably
from their immediate feelings; in other words, from considera-
tions of equity.” In the course of their business many similar
cases would occur; upon these similar decisions would naturally
‘be given. A number of precedents thus introduced would,
from the power of custom, acquire authority and respect. Gen-
eral rules would gradually be formed, and the utility of estab-
lishing them would become an object of attention. Those rules,
however, upon a little further experience, would be found at
times too narrow, at other times too broad. To adhere rig-
1 Pollock and Maitland, writing of torians. So of equitable jurisdic-
the time of Bracton, say: “Of equity
as of a set of rules which can be put
beside the rules of law, or of courts
whose proper function is the admin-
istration, not of law, but of equity,
we shall hear nothing for a long time
to come.” But that a contrast be-
tween equities and rigor juris was
then recognized, and the king’s court
by tradition empowered to do what-
ever equity might be required, was
asserted by the Frankish kings and
since the Conquest, say these his-
tion exercised in the chancery, noth-
ing was heard; the king’s justices
still believing that they could do
what equity required. At this time
the chancellor would often sit among
the justices. Hist. Eng. Law, pp. 168,
175. In The Case of the Mines, Plow-
den, 320, it is said that equity was a.
part of the jurisdiction of the court
of exchequer.
22 Wilson's Works (Andrews’ ed.,
1896), 124 et Seq,
3 Id, 135,
66
1040 LAW OF ACTIONS. [$ 647.
idly to them at all times would be to commit injustice under
the sanction of the law. To avoid an evil so alarming it would
be thought advisable, upon extraordinary occasions, to recede
from the general maxims and to decide, as Originally, accord-
ing to the immediate sentiments of justice. In this manner
the distinction between equity and strict law was probably in-
troduced; the former comprehended the established rules, the
latter comprised their exceptions.
“But when the exceptions became numerous, many of them
also would be found to be similar, and consequently to require
a similar decision. Those similar decisions would in turn pro-
duce a new rule, and this new rule would in its turn give birth
to new exceptions.
“If this account of the matter is just, and it seems to be
natural, law and equity are in a state of continual progression,
one occupying incessantly the ground which the other in its
advancement has left. The posts now possessed by strict law
were formerly possessed by equity, and the posts now possessed
by equity will hereafter be possessed by strict law."
“In this view of the subject—and it is an interesting one —
equity may well be deemed the conductor ºf law towards a state
of refinement and perfection. -
“In this view of the subject we can find no difficulty in pro-"
nouncing that every court of law ought also to be a court of
equity; for every institution should contain in it the seeds of
its perfection as well as of its preservation. -
“In this view of the subject we shall find as little difficulty
in pronouncing that every court of equity will gradually become
a court of law,” for its decisions, at first discretionary, will grad-
ually be directed by general principles and rules. Thus, in
England, the court of chancery has gradually divested itself of
its original and arbitrary character, and has become in that
respect one of the courts of the common law. Thus again, in
England, the courts of common law, animated lately with the
spirit of improvement inspired by a liberal age, have enlarged
1 See also 1 Spence, Eq. Jur. 325, cise of grace, and the courts no longer
note C. pretend to modify the rigor of the
2This is now actually accomplished, law. The old definition of equity is
for ‘the jurisdiction has changed obsolete.
completely from the idea of an exer-
§ 647.]
LAW OF ACTIONS. 1041
their powers of just decision, and have advanced within the
precincts of equity. The particulars, in which they still differ,
are indeed of importance; but I see no reason why the sepa-
rate powers of chancery, placed there very properly indeed,
should be thought incommunicable to the courts of common
la W 271 - • *.
Ancient Equity.—If the mind is kept fixed on the jurisdiction
to administer equity rather than the tribunals which admin-
ister it, little difficulty will be experienced in comprehending
the distinct jurisdiction exercised by the same court and fre-
quently in the same cases. There is no doubt that equity was
administered in the Saxon courts not in name, but in fact. Per-
haps it was the controlling power, although there was no sys-
tem of equity.” *
After the Conquest.— We have spoken of the new idea of
jurisdiction introduced by the Norman conquest.” The councils
of the Saxons from the highest to the lowest were assemblages
of freemen — councils of the nation, and not mere councils of
the king.”
The great council of the Norman king, the aula regis, was
modeled after the cour de roy of the French kings and the
aulic council of the German emperors;" and in this council was
centered the whole legislative and judicial power, saving only
a remnant reserved to the county court and folk moot, which
12 Wilson's Works, 136. The ref-
erence is doubtless to the extension
of the action of assumpsit, which is
likened to a bill in chancery. See
remarks of Buller, J., in Straton v.
Rastol, 2 T. R. 366.
* Maine's Anglo-Saxon Law, 24;
Tessees of Livingston v. Moore, 7 Pet.
547. See reference to Pollock and
Maitland Hist., note supra. Crabb,
in his History of the Common Law,
says that the equitable jurisdiction
Of the chancery is supposed to have
been suggested by the Romans, whose
praetors were authorized to pro-
nounce equitable decrees, not to the
extent of abrogating laws, but to
the extent of tempering them with
equity; and Says that the power of
the chancellor was none other than
what our kings had exercised in an
early day, who had been used to mod-
eraſe the judgments of other courts
by their equitable decisions. Crabb's
Hist. Com. Taw, 340.
The king, in council with his great
barons, after the dissolution of the
cwri regis and before the creation
of the chancery as a court, decided
causes eac equo et bono upon princi-
ples of equity and justice. 1 Reeve's
|Hist. Eng. Law, 283. It seems also
that none of the courts doubted their
right to do equity.
3 Ante, p. 30.
4 White's Outlines English Law, 8.
5 Id.; 2 Wilson's Works, 82.
1042 LAW OF ACTIONS.
[$ 647.
were left in existence." To the king, however, by the new con-
stitution, the prerogative of administering justice was given,
and the aula regis was in theory a council of the king.”
The ancient Saxon courts with their remnant of jurisdiction
form an exception,” but the new courts followed the king until
Magna Carta fixed the place of the common pleas."
Equity has always been held to be a part of the common law,”
though its exercise has not always been delegated to the courts,
but some portion thereof at least reserved by the sovereign
power," meaning by sovereign power in this connection the
parliament.
Jºvity as a Separate Jurisdiction.— The separation of equity
from common-law jurisdiction is peculiar to the English system
of procedure, and those modeled after it having the trial by
jury. The common-law system with the trial by jury is not well
adapted to hear and determine all matters properly cognizable
in the courts, and experience has shown the need of another
department better fitted to cope with the residue.
Equity as an essential branch of jurisdiction or judicial power
is acknowledged to have existed everywhere; and wherever an
established court of equity jurisdiction does not exist, the power
is retained in the legislative branch," or is exercised in the or-
dinary form of actions.
11 Spence's Eq., ch. 13; 3 Cooley's
Blk., Ch. 4.
• 2 Hale's Outlines Eng. Law, sec. 3.
31 Reeve's Hist. 268; Crabb's Hist.
47.
41 Spence's Eq. 119.
5 1 Story, Eq. 41. Hobart declares
“all kingdoms in their constitutions
are with the power of justice, both
according to law and equity; both of
which, being in the king as sovereign,
were afterwards settled in several
courts. But that part of
equity being opposed to regular law,
and in a manner an arbitrary dis-
position, is still administered by the
Ring himself and his chancellor in
his name ab initio as a special trust
committed to the king, and not by
him committed to any other; and it
is true that the one is bound to rules,
the other absolute and unlimited,
though out of discretion they observe
some forms which they may justly
leave in special cases.” Martin v.
Marshall, Hobart, 63.
6 Id., sec. 49; Livingston v. Moore,
7 Pet. 547. t
7 Livingston v. Moore, 7 Pet. 547
(1833). Palgrave makes one of his
characters say: “At present (Tempo
Ed. 1) a great part of our law busi-
ness is cheaply, expeditiously and
equitably dispatched in the folk
qmoot or courts of the hundred or
shire, which go on regularly by im-
memorial usage without any writ or
other sanction from the king. These
tribunals we derive from our ances-
tors. We had laws before we had
§ 647.] LAW OF ACTIONS. 1043.
U t - .
RISE of THE CHANCERY Court – The Ancient Chancellor.—
An officer called chancellor, and closely connected with the
king, has existed from the earliest times," but anciently he
seems to have been lower in rank than the chief justiciar or
earlderman, who was next to the king,” and who acted as viceroy
in his absence and might issue writs running in his own name.”
The chief justiciar presided as chief judge in the court of ex-
chequer. Subsequently he was divested of his power as viceroy,
and the office itself seems to have been merged into the regu-
lar judiciary.” It was then that the dignity and influence of
the chancellor arose.
The Original Writ.—Upon the creation of the three great
courts—the king's bench, the exchequer, and the common
pleas—the fundamental principle of jurisdiction of these courts
was insisted upon. -
No suitor could begin an action in one or the other of these
courts, as he saw fit, or as his opinion was as to the jurisdiction,
but he was compelled to apply for a writ, and no judge of these
courts could take cognizance of a suit excepting upon the pres-
entation of what was termed an original writ.” This original
writ generally issued out of the office of and under the seal of
the chancellor," and this duty of the chancellor was merely min-
isterial."
The Chancellor’s Ordinary Judicial Authority.—Besides busi-
ness of a ministerial character there are many other matters
directly between the king and his subjects of which it was the
principal function of the chancellor to take cognizance. As
nothing could pass from the king excepting under his seal, so
the validity of claims based on these grants might always be
questioned. It was accordingly a part of the ordinary business
prerogative, and folk moot before we 2 Crabb's Hist. Eng. Law, 100. See
had kings. A writ is often long in Sullivan’s Lect., p. 415.
Coming, and suitors find that a golden 31 Spence's Eq. Jur. 100. -
Cup placed in the king's wardrobe 4 Sullivan's Law Lect. 415; Reeve's
or a bay stallion sent to the royal Hist. Eng. Law, 264, 265; 1 Spence's
stables has a great effect in driving Eq. Jur. 100–106.
the chaplain quill.” Palgrave's Hist. 5 Andrews' Steph. Pl., § 38.
of Anglo-Saxon, Pref. - 6 Id.
1 Selden gives the earliest historical 72 Wilson's Works, 226; 1 Pollock
evidence of the office as about the and Maitland, Hist. 175. -
year 920. 1 Woodson’s Lect. 161, 162.
1044 IAW OF ACTIONS. [$ 647.
of the chancellor to bring to account any one claiming under
charter or grant from the king; also to determine matters of es-
cheat, and inquisition into offices in the nature of quo warranto.
Such matters could be heard and determined by the chancellor,
excepting where there was a real issue of fact, when the practice
was to make up a definite issue and submit it to the king's
bench, where a jury was summoned; i.e., they formed an issue
out of chancery to be tried in the law court."
In such matters, if the subject was the mover, he obtained
no writ to any other court, but was heard by the chancellor.”
A vast volume of the ordinary business of the chancellor's
office was no doubt the framing of the writs necessary to bring
ordinary suits between private persons,” which was an impor-
tant matter because it determined to what court the suitor
should be sent for trial. - -
It will thus be seen that the chancellor, or chancery, had, as a
court, a well defined jurisdiction, in no sense analogous to what
is in modern times called equity.”
Lausatt presents this ordinary jurisdiction under three heads:
His common-law jurisdiction; his delegated jurisdiction; his stat-
aſtory jurisdiction. To the former he ascribes the power of issu-
ing writs in cases between subjects, and deciding cases between
the subject and the crown.”
A delegated jurisdiction includes his powers as representative
of the king in his capacity of parens patriae,” the visitorial
power over charities." The statutory jurisdiction embraced
1 Sullivan's Lect. 417, citing 4 Inst.,
pp. 79, 80. “Chancery, which beside
that it dealeth with matters of con-
science, and moderating the strict-
ness of the common law by an abso-
lute power, dealeth also in ordinary
Course of law in divers cases, espe-
cially in suits concerning the king, as
petitions, scire facias, to repeal his
patents, etc., and so it is a court of law
and of record, where the judge is the
chancellor, having the custody of the
great seal of England, under which
pass all writs out of the chancery
with teste meipso (witness ourself),
and also the king's grants, being
therefore called letters patents,
though it be of things which he hath
in his natural capacity, as by descent
from his mother, etc., and are en-
tered of record in this court.” Finch's
Law, p. 238.
2 Chisholm. v. Georgia, 4 Dall. 416;
1 Spence, Eq. Jur. 355.
81 Spence, Eq. 238.
41 Spence, Eq. 236.
5 In Equity in Penn., 1825; Fon-
blanque's Eq.
6 Dodge v. Cole, 97 Ill. 354.
7 But not over corporations in gen-
eral, which was in the king's bench.
Attorney-General v. Utica Ins. Co., 2
John. Ch. 371; Lawy. Ed., vol. 2, p. 412.
§ 647.] LAW OF ACTIONS. 1045
such subjects only as were committed by parliament to the
chancellor, as was formerly the subject of bankruptcy and
charitable trusts. -
The extraordinary or equitable jurisdiction of the king and
his chancellor, which finally gave rise to the creation of a new
court called chancery, is not always so clearly contrasted with
the ordinary jurisdiction as to make plain the fact that equity
is not of necessity committed to a distinct tribunal. It was be-
cause of the peculiar theory of jurisdiction that the law courts
were confined, as to the causes of which they could take cogni-
zance, to those described in the original writs sent from the
chancellor.
It is quite plain that with the development of society there
would arise many matters which the clerks of the chancery
would find not within the terms of any of the writs of which
their books contained a precedent. In such cases there was
nothing to do but to refer the suitor's petition back to the
king or council, and, the matter being by the king delegated
to the chancellor, he heard the cause and gave suitable relief.
This was an easercise by specific delegation of what was after-
wards the regular equitable or extraordinary jurisdiction of
the chancellor." The chancellor's extraordinary jurisdiction
was the power subsequently acquired to hear a cause and give
relief without sending a petition to the king or council and
awaiting their express delegation.
It was not until this jurisdiction was established that we see
the rise of the chancery court.” King Edward III., being un-
able to attend to the numerous petitions, by a general writ or
ordinance given in the twenty-second year of his reign (1349),
referred all such matters as were of grace to be dispatched by
the chancellor or by the keeper of the privy seal. -
This was a general authority to hear and determine in all
matters of grace, and differed essentially from a special dele-
gation in a specific matter, or the narrow specific authority
11 Spence, Eq. 335. the Law, whereof the Lord Chancel-
2 “The Chancery Court.— Cancel- lor of England is the Chief Judge.
aria, ae, f. Chancery is the Court of Cromp., Jurisdict., fol. 41, or else the
Equity and Conscience, moderating Lord Keeper of the Great Seal since
the rigour of other Courts that are the Statute 5 Eliz., cap. 18.” Old Dic-
more straightly tyed to the Letter of tionary by F. O. (1701).
1046 LAW OF ACTIONS.
[$ 647.
contained in an original writ to try and determine a specific
issue." - e
Jºnal Establishment of the Chancery as a Separate Court.—
It is a common impression, based upon a dictum of Blackstone,
that but for the illiberality of the judges of the common-law
courts no separate court of chancery would have arisen.”
But it is difficult to perceive how the judges appointed by
the king to preside over courts created by him, and exercising
jurisdiction by virtue of a writ or warrant of authority under
his seal, defining with particularity the issue they were to
make up for trial by a jury, could be expected to extend their
jurisdiction to matters which, time out of mind, had been
deemed, in the eye of the law, matters of the king’s grace and
favor.
With the common-law judges it was a question of jurisdic-
tion, not of discretion. That the common-law judges could
and did apply equitable principles to the matters within their
cognizance is well established, and, though a different thing
from extending their jurisdiction, is as much as their authority
warranted.”
The reasons for the separation are not hard to discover, and
are both based upon the demand of the English people for due
process of law. They really reach down or up to the consti-
tution. The first is based upon the right of every man to have
his legal rights tried by a jury of his peers, according to the
course of the common law; * the second anciently permitted
11 Spence, Eq. 337; Langdell, Sum.
Eq., xix.
2This is clearly erroneous. In fact
the earliest resorts to chancery were
not because the law provided no
remedy, but because the law judges
could not enforce their jurisdiction.
The earliest bills are given in 1
Taw Intelligencer, p. 191. See Story,
Eq., §§ 40–47; 1 Spence, Eq. 242, 243.
Mr. Spence says: “The course of jus-
tice itself was interrupted, and all
these provisions were rendered in a
great degree ineffectual by the law-
less spirit of the times.”
3 This matter is very clearly ex-
plained by Stephen. Andrews' Steph.
Pl. 64.
4 The right of trial by jury is the
one peculiar feature wherein the
|British constitution differed from
that of all other European countries.
Blackstone speaks of this as the pe-
culiar glory of that constitution, and
adds that the author who predicted
that, because Sparta and Rome had
lost their liberty, so, too, would Eng-
land, should have recollected that
these countries were strangers to the
trial by jury. 3 Cooley's Blk. (4th
ed.) 379, n. See observations of John-
son, J., in Lessees of Livingston v.
Moore, 7 Pet., at p. 547. It is beyond.
the power of the legislature to take
away the right by calling an action
equitable. Ward v. Farwell, 97 Ill.
§ 648.] LAW OF ACTIONS. 104'ſ
a residuum of grace to remain in the sovereign, and later ap-
peared in that discretionary form of equity long obsolete.
The second reason, in modern times conforming to the ne-
cessity for a more elastic procedure to adjust complex transac-
tions, but yielding to the demand of the British people that
they be governed by law and not by prerogative, led to a set-
tled form of procedure for the administration of equity, which,
like forms of action at law, became in time due process of
law.' ' - * -
This is the rock which wrecked the so-called reform based
upon the idea of abolishing the distinction between legal and
equitable actions.” -
SEC. 648. Establishment of Forms of Action, Legal and
JEquitable.—These are nothing more nor less than the estab-
lished regular method of pursuing a remedy.
Their origin is plain. They are simply the recognition of
recurring causes coming to the courts for redress,” differing
from each other in certain typical elements, and may best be
handled by separating them into classes."
In the original writs the cause was definitely described, and
the nature of the action determined the jurisdiction of the
612. So the right to an account may
require a jury trial, in which case
the chancery sends the question to a
law court for trial. Selectmen v.
Boylston, 4 Mass. 313.
1 A jury trial has never been made
or recognized as one of the instru-
ments of courts of equity; hence One
may readily see why the courts de-
cline to try legal titles. Keith v.
Henkleman, 173 Ill. 137. The doc-
trine was recognized that those
forms and courses of proceeding
based upon well-recognized princi-
ples in force before and at the time
of the adoption of our national con-
stitution would be “due process of
law.” San Mateo Co. v. So. Pac. Ry.
Co., 13 Fed. Rep. 147, 722; Keith v.
Henkleman, supra; County of Santa,
Clara v. So. P. Ry. Co., 18 Fed. Rep.
418.
2 All the cases in the code states
holding that the forms must be fol-
lowed rest on this principle; so also
the Pennsylvania cases. Post, p. 1058,
note 1.
3 Andrews' Steph.
Chitty, Pl., ch. II.
4.E. g., the recital that the defend-
ant Sprang upon, i. e., assaulted,
struck, beat and bruised the plaint-
iff, whereby he was injured, is totally
different from the statement that the
defendant negligently kept a vicious
horse, which, escaping, bit the plaint-
iff; and these both differ from a state-
ment that the defendant agreed to
pay the plaintiff $100 for goods sold
and delivered, and, though often re-
quested to pay, has not done SO. Ex-
perience soon made it plain that such
occurences would recur again and
again, and that the dispatch of busi-
ness and certainty of the record
would be aided by the use of set,
forms.
Pl. 63–65; 1
T048 LAW OF ACTIONS. [$648.
court to try the case. Stephen says: “These writs differ from
each other in their tenor, according to the nature of the plaint-
iff’s complaint, and are conceived in fixed and certain forms.”"
Now, the more ancient writs had provided for the most com-
mon kinds of wrongs, but, in the progress of society, cases of
injury arose, new in their circumstances, so as not to be in-
cluded within any of these writs.”
Only Parliament Could Create a Wew Jurisdiction.—The
power of the chancellor and his clerks as to the framing of
these writs of jurisdiction was never discretionary, but re-
strained within definite limits. The duty was merely ministe-
rial.” . *
It was an established principle that new courts might be
erected by the king, but it was equally fundamental that a new
jurisdiction could only be created by parliament; and the de-
vising of a writ which was new in principle was the same
as the creating of a new jurisdiction.* &
In the year 1258, at a council of parliament held at Oxford,
it had been provided that the chancellor should not issue any
writs otherwise than by command of the king or his council.
The natural effect of this was to crowd the king's council
with petitions. So burdensome did this become that in the
eighth year of Edward I. (1280) an ordinance was passed re-
quiring that all petitions should be presented to the chancellor,
and that matters touching the seal should be decided by him;
that those which concerned the exchequer should be sent to the
exchequer court; and that if the matter should be so much of
grace, it should be taken to the king, so that the petitions must
come by the hand of the chancellor.”
It frequently happened that, as to matters not falling within
any of the above, the chancery clerks had no writ or form
of action to fit the cause of complaint. Hence a statute (13
Edw. I.) was passed providing: “That as often as it shall
happen in the chancery that in One case a writ is found, and
1 Andrews' Steph. Pl. 64. particularly Andrews' Steph. Pl. 64;
21 Chitty, Pl., ch. II. 1 Chitty, Pl. 95, 96.
81 Poll. & Mait. Hist. Eng. T. 175. 5A translation of this ordinance is
41 Spence's Eq. 239, note f. citing given in 1 Story’s Eq. Jur., sec. 44,
9 Co. Rep., Pref. xxviii, per Ashurst, note. It is quoted by Iredell, J., in
J.; Pasley v. Freeman, 3 T. R. 51. See Chisholm. v. Georgia, 2 Dall. 419–41.
§ 648.] LAW OF ACTIONS. 1049
in a like case (in consimili casu), falling under the same right
and requiring like remedy, no writ is to be found, the clerks
of the chancery shall agree in making a writ, or adjourn the
complaint to the next parliament, and write the cases in which
they cannot agree and refer them to the next parliament,” etc."
Trespass on the Case.—This statute did not sanction the fram-
ing of new writs for cases new in principle,” but it allowed the
clerks in chancery only to devise a new species of an old form
of action, i. e.,” frame a writ in consimilâ casu (a like case to
some old case), falling under a like law and requiring a like
remedy; * nor does this statute afford relief in cases falling
within the old writs, such as covenant, debt or detinue, which
were at that time the only suits for a breach of an executory
contract.” In these cases the defendant might resort to com-
purgation, and by waging his law defeat justice.”
To prevent this fraudulent use of compurgation and waging
of law, resort was continually had to chancery, where relief
was given, and thereby a tendency was encouraged to draw
to the chancery court a class of cases purely legal." This was
counteracted somewhat by framing writs on the case for mis-
feasance and malfeasance.”
The Origin of Assumpsit.— At one time there had been no
legal remedy for non-performance of a simple executory con-
tract, but actions on the case for consequential damages on
account of malfeasance or misfeasance, or what we would call
actions on the case, were recognized. An essential element of
the cause of action on the case must be the doing of what the
defendant ought not to have done, or the doing, in an improper
"manner, of what he should have done, i. e., malfeasance or mis-
feasance. .
A different idea is involved in the non-performance of an
1 Andrews' Steph. Pl. 62; 1 Chitty, 73 Bik. 52; 3 Reeve's Eſist. Eng.
Pl., ch. II. Taw, 242; Dutton v. Poole, 1 Free.
*1 Spence's Eq. 239, note f: An- 471.
drews' Steph. Pl. 64.
3 Andrews' Steph. Pl. 85.
4 See Andrews' Steph. Pl. 64, 65.
* See Parol Contracts Prior to AS-
Sumpsit, by J. B. Ames, 8 Harv. L.
Rev. 252. -
*Spence's Eq. 242; Rudder v. Price,
infra.
8 This action on the case is much
like a case in equity, for in it, says
Coke, a man may declare his case as
it really is, and he shall have a rem-
edy for such part as legally requires
a remedy. Slade's Case, 10 Co. Rep.
130; 1 Spence's Eq. Jur. 243; 1 Chitty,
Pl, 96. -
1050 LAW OF ACTIONS. [$648.
agreement, and for a time the judges of the law courts, which
had the power and duty to pass on the validity of original writs,
dismissed the writs which were founded upon such causes of
action;' but finally it was held that an action on the case would
lie in such cases as for a non-feasance; and hence, says Spence,
the origin of the modern action of assumpsit; * and hence, of
course, its name, trespass on the case, on the promise. -
The Writ of Subpoena in Chancery.— It was essential to the
jurisdiction of the person that"the defendant be notified of the
pendency of the suit. This writ of process or notice in chancery
is called a subpoena, and corresponds to the summons or mesne
process which issued in a common-law action.”
Jęise of Chºncery Practice.—The invention of the subpoena.
marks the establishing of a fixed tribunal assuming to exercise
an original jurisdiction,” and was followed in due course of time
by the invention and adoption of settled modes of procedure;
so that in the natural evolution, the chancellor, as the keeper of
the seal and of the king's conscience, gradually became the in-
strument of administering the law in the special class of cases,
and that which was at first arbitrary and casual became cus-
tomary and regular, and gradually developed a system of rules
and a regular method of procedure, so that in time equity pro-
cedure became as well settled and certain as any other part of
the law.
Chancery Practice.—The method of procedure on the chan-
cery side of the court adapts itself to the investigation of the
rights and interests of many parties in a single transaction,
Or several matters which had been involved in a connected
transaction, and to the adjustment of the rights of a multi-
tude of parties, so that, for illustration, it may be said that the
parties at law are arrayed against each other on opposite sides of
an issue joined, while the parties in a chancery suit may mingle
either court is called indiscrimi-
nately a summons; while the sub-
11 Spence's Eq. 243, and cases cited.
Lord Coke's account, in Stade's case,
of the action of assumpsit is pro-
nounced by Lord Loughborough to
be incorrect. Rudder v. Price, 1 H.
Blk. 550 (1791); 1 Chitty, Pl. 99; 3
Cooley's Blk. (4th ed.) 52.
2 Id.
*In modern times, process out of
poena is used as a means of Summon-
ing witnesses.
4 For the earliest resorts to equity,
see The Law Intelligencer, p. 191; 1
Story, Eq., § 47; 1 Spence, Eq. 343.
There were in these no allegation
that there was no remedy at law.
§ 648.] LAW OF ACTIONS. 1051
a diversity of interest ºn a common subject and are parties com-
plainant or defendant, not simply because of an opposition of
interest, but because one has or claims some interest, and will
not join as a party complainant." -
Equity in America.-The judicial establishments of the col-
onies depended largely upon the provisions of their charters in
reference thereto and the closeness with which the colonists
adhered to them, and naturally differed according to circum-
stances surrounding the people.
The New England colonists were never very close adherents
to the contracts they made in their charters, and the general
courts at an early date exercised both legislative and judicial
authority, in time creating subordinate magistrates; but in Con-
necticut never until long after the national constitution was
adopted was the equitable power taken away from the gen-
eral assembly. Equity as a branch of jurisdiction was well
understood and constantly exercised in all the colonies, but in
some of them the governor and council took the place of the
court of chancery in England.
An explanation of the colonial judicial establishment of New
York will convey sufficient idea of the partition of the juris-
diction.”
1 Andrews’ Steph. Pl., pp. 39–46;
Brinkerhoff v. Brown, 6 John. Ch.
139; N. Y. & N. H. Ry. Co. v. Schuy-
ler, 17 N. Y. 592.
2*An Account of all Establishments
of Jurisdictions within this Province.
“Single Justice.—Every Justice of
the Peace hath power to determine
any suite or controversy to the value
of forty shillings.
“Quarter Sessions.—The Justices
of the Peace in Quarter Sessions have
all such powers and authorities as
are granted in a Commission of ye
Peace in England.
“County Court.—The County Court
or Common Pleas hath cognizance of
civil Accóns to any value, excepting
what concerns title of land, and noe
Accén can be removed from this
court if the damage be under twenty
pounds.
“Mayor and Aldermen.—The Court
of Mayor and Aldermen hath the
same power with the County Courts.
“Supreme Court.—The Supreme
Court hath the powers of Kings
Bench, Common Pleas & Exchequer
in England, & noe accón can be re-
moved from this court if under £100.
“Chancery.—The Governour and
Councill are a court of Chancery and
have the powers of the Chancery in
England, from whose sentence or de-
cree nothing can be removed under
£300.
“Prerogative Court.— The Gov-
ernour discharges the place of Or-
dinary in granting Administracóns
and proveing Wills, &c. The Secre-
tary is Register. The Governour is
about to appoint Delegates in the
remoter parts of the Government,
with Supervisors for looking after
I052 LAW OF ACTIONS. [$648.
A separate jurisdiction in equity was abandoned in New
York after the retirement of the English governor-general,
and was not thoroughly re-established until early in the pres-
ent century; and notwithstanding the idea which took posses-
sion of the people about thirty years later, the jurists of Massa-
chusetts supposed that they suffered for the lack of a separate
chancery court, wherein equitable remedies might be adminis-
tered under a form of action better adapted to the nature of the
cause of action." -
Pennsylvania Procedure.—A system of procedure which
combines the administration of equity and law in a single form
had existed in Pennsylvania long before there was any thought
of a code of civil procedure. -
Before leaving England to plant a colony in America, Penn
and his associates agreed to what may be called their consti-
tution, “that in all courts all persons of all persuasions may
freely appear in their own way, and according to their own
manner, and there personally plead their own case themselves,
or if unable, by their friends. . . That all pleadings, pro-
cesses and records in court shall be short and in English, and
in an ordinary and plain character, that they may be under-
stood and justice speedily administered.” The spirit of this
intestates estates & providing for
Orphans. -
“Court Martial.— The Governor
hath established a Court Martial at
Albany whereof Major Ingoldesby is
|President & Robert Livingston Judge
Advocate who with the other cóm-
missionated Captains at Albany have
power to exercise Martial Law, being
a frontear Garrison and in actuall
Wa,TI’.
“Admiralty.—Their Majesties re-
serve the appointment of a Judge
Register, and Marshall.” Document-
ary Hist. of New York, vol. 1, p. 317.
1 In 1819 the Massachusetts Court
says: “This is one of the numerous
cases which are constantly occur-
ring which show the necessity of a
court of chancery for the complete
distribution of justice among the
people. It is the boast of the com-
mon law that it permits no wrong
without furnishing a remedy; but
this is true only when there are
courts competent to exercise all the
judicial powers which that law re-
quires for its due administration.
A court of chancery exercises a.
most important part of those judicial
powers. Its duty is not to establish
new rules unknow. In to the common
law for the conduct of the people, or
the regulation of their property,
but to apply and enforce those prin-
ciples of the common law which
cannot be enforced by the other
courts.” Wose v. Grant, 15 Mass. 521.
2 If the student will pay particular
attention to the Pennsylvania pro-
cedure, the idea of code reform will
seem clearer. Lyle v. Richards, 9 S.
& R. 340, opinion of Duncan, J.,
p. 355; Pa. Bar Ass’n Rep., p. 5.
§ 648.] LAW OF ACTIONS. 1053.
compact seems to have clung to the procedure in Pennsylvania
to a degree almost amounting to a prejudice."
But irrespective of the forms of procedure, equity as a juris-
diction and a mode of procedure has been recognized from the
earliest times in this and all the other states.”
There are two ordinary modes of procedure in Pennsylvania,
which, for convenience, may be called law and equity.
Prior to 1836 all proceedings were at law. In 1836, and sub-
sequently from time to time, proceedings in equity were pro-
vided for by the legislature. The courts decided that this
legislation did not interfere with the right, as it existed previ-
ously, to proceed at law. Therefore, as well since 1836 as be-
fore, all proceedings may be at law; all cases that come within
the constitutional provision that “trial by jury shall be as here-
tofore” must be at law; those that come within the scope of
the legislation of 1836, and later, may be in equity or at law.”
There aré, however, many cases, rather than a class or classes
of cases, in which it would be difficult, if not impossible, to ob-
tain at law the full measure of relief sought, so that, in fact,
they are begun in equity. This is because the forms in equity
are more applicable than at law. In either form the cases
would be decided according to law; for, as was said by Justice
Lowrie in Stockdale v. Ullery: * “Equity is so much a part of
our law that the word ‘law ' means both law and equity, or
either.””
1 I am indebted to Mr. Justice Sim-
Onton, judge of the twelfth judicial
district of Pennsylvania, for valu-
able suggestions with reference to
Pennsylvania practice. See his ad-
dress as president of Penn. Bar Ass'n,
vol. 1, Rep. 2
2 Pollard v. Shaaffer, 1 Dall. 211;
Wikoff v. Core, 1 Yeates, 358.
8 Mr. Justice Green, therefore,
seems mistaken when he says in
Johnson v. Price, 172 Pa, St. 427, a
Case involving a proceeding to settle
partnership accounts, that beyond all
Question a bill in equity was not only
the proper but the exclusive remedy
for the plaintiffs. The proposition
that under the modern practice in
Pennsylvania a case of pure equitable
remedy cannot be conducted as a
law case seems to find support in an
expression in Germanic Am. T. & T.
Co. v. Shallcross, 147 Pa. St. 485.
437 Pa. St. 486.
5 Equity jurisdiction in Pennsyl-
vania does not depend upon the want
of a common-law remedy alone, but
may be sustained on the ground that
it is the most convenient remedy.
Johnson v. Price, 172 Pa. St. 427.
Because assumpsit will lie it does not,
follow that the chancery side of the
court has no jurisdiction. Jurisdic-
tion depends not so much. On the
want of a common-law remedy as on
its adequacy. Bierbower's Appeal,
107 Pa. St. 14. Or, if the remedy in
chancery is more convenient, that of
f:054 I, AW OF ACTIONS. - [$648.
The distinctions as to procedure between some of the com-
mon-law actions have been abolished, but not between all."
The Wature of Modern Equity.—Whatever the ancient idea
was in reference to equity being a distinct system of law which
might modify the harshness and rigor of the ordinary body of
the law, it is certain that this idea does not correspond to what
is meant by equity in modern jurisprudence.
Equity, as now understood, is not a system borrowed from
the Roman law, but one built up with infinite pains and labor
by jurists, whereby logical principles are made the basis of fixed
rules, and whereby the ancient idea of a discretionary power
in the emperor, or praetor, analogous to the royal prerogative,
has no part or place.”
On the contrary, the system of equity both in England and
America is a settled, organized system, controlled by well-known
rules, and bound down by precedents from which they do not
depart.” Not that they may not act where there is no prece-
dent, but that they will not act in the face of one.” But this is
equally true of the law courts in the use of the action on the
C3,S62.
The ancient system which passed under the name of “Equity”
could scarcely be termed judicial.” The modern system is
strictly so. -
Utility of Settled Forms of Action— Unsettling the Practice
by Codification.—“‘Sapientissima res tempus,” says the profound
Lord Bacon, in one of his aphorisms. Time is the wisest of
things. If the qualities of the parent may, in any instance, be
expected in the offspring, the common law, one of the noblest
births of time, may be pronounced the wisest of laws.”
There seems to be nothing but experience which will demon-
itself is sufficient. Brush Electric but does not control it. The Office of
Co.'s Appeal, 114 Pa. St. 574.
1 Brightly’s Purdon, Dig. (12th ed.)
1782. .
23 Hammond's Blk. 601. The prin-
ciples of equity, as administered in
Great Britain, were never intended
to create a new law, but were intro-
duced for the purpose of assisting
and giving effect to the general laws
of the realm. Equity follows the law,
equity is to protect and support the
common law, and carry it into prac-
tical effect. 3 Blk. Com. 429–431;
Beal v. Fox, Ex’rs, 4 Ga. 424, 425.
8 Bonn v. Hopkins, 1 Sch. & Lef.
428; Burgess v. Wheaton, 1 Wm. Blk.
123; Manning v. Manning, 1 Johns.
Ch. 530; 3 Cooley's Blk. (4th ed.) 432.
4 Dodge v. Cole, 97 Ill. 354.
51 P. & M. Hist. Com. Law, 172.
§ 648.] LAW OF ACTIONS. 1055
strate the feasibility or impracticability of proposed reform
in politics or legal procedure.
Objects of Codification.—Happily what informer times rested
in opinion is now susceptible of demonstration. The crucible
of time has tested the practicability of these experiments which
were to revolutionize and simplify the procedure in our courts
of justice, and to render the obtaining of justice speedy, certain
and inexpensive."
Test of Practicability.—A brief reference to the facts, now
matters of history, may be of utility in enabling the students
How far the achievements of re-
formers have fallen short of their in-
tent may be judged by the following,
which is really only a just, conserva-
tive observation. Mr. William H.
Hornblower, of the New York bar,
said in a recent speech at a dinner of
the Hudson Co. (N. J.) Bar ASSocia-
tion:
“Do not be led astray by specious
arguments in favor of reformed pro-
cedure. Be content to let well
enough alone. You have the state
of New York before you as a terrible
example of the effects of riotous and
excessive codification. I believe Our
practice to-day is infinitely more
technical than that in New Jersey.
Even the attempt to abolish forms of
action, and especially the attempt to
abolish the distinction between law
and equity practice, have been dismal
failures.
“The distinction between trover
and assumpsit is to-day even more
rigidly maintained than under the
common-law practice. It is impos-
sible to amend upon a trial from tro-
wer to assumpsit, or vice versa.
“If the plaintiff sues for conver-
sion when he should have sued on
: contract, or vice versa, he is non-
suited at the trial with relentless cer-
tainty.
“In the absence, however, of any
..outward or visible distinction in the
process, or outward or visible label
upon the complaint, the court is
forced to construe each complaint
as it comes before it, in Order to de-
termine whether it is in tort or on
contract, and we are frequently
obliged to go to the Court of appeals
to find out, and even there the court
is frequently divided in opinion.
“The assimilation of legal and
equitable actions has also proved a
delusion and a snare. The distinc-
tion between the two classes of ac-
tions still remains in point of fact,
and must remain so long as the right
of trial by jury prevails as to com-
mon-law actions, while trial by the
court, without a jury, prevails in
equity actions.
“It is not a little singular that the
result of the so-called reformed prac-
tice has been quite the contrary to
that expected by its framers. It was
anticipated that, by assimilating the
practice in law and equity, our whole
system of jurisprudence would be
liberalized and the principles of
equity carried gradually into the
common-law Courts.
“On the contrary, the effect has
been to rigidify and harden the prac-
tice in equity, to assimilate it more
and more to the common-law prac-
tice, to make the judges more and
more disposed to follow precedents
and less disposed to strike out upon
original lines of equitable jurispru-
dence.” -
• 67
1056 w LAW OF ACTIONS. [$648.
of law, the jurists who administer it, and the legislators who
reform and change it, the better to comprehend the real ele-
ments involved in attempts to abolish a settled procedure and
to substitute a new one. ;
In view of the fact that it is regarded as an essential to due
process of law in our American constitutions that a regularly
settled procedure be established, it may be wise to view the
subject as a constitutional as well as a utilitarian question.
The attempt must take into account the right of trial by
jury according to the course of the common law; not simply a
common-law jury, but proceedings conforming to the ancient
principles of a definite issue."
A jury trial is in many cases not desirable, and in many of
these a jury trial has never been allowed; for these another
mode of presentation has from time immemorial been allowed,
and these cases called equitable have been classified, and law-
yers and jurists have formulated and established forms for the
statement of each of the various causes of action, which by
frequent recurrence had been recognized as likely to recur
constantly. These are the equity causes of action and equity
forms of action.
Jēesumé of Jęeforms in Procedure.—Starting with the rise
of a separate chancery court in England, which began under
the idea that it was the exercise of the king's prerogative, with
a general power, restrained and controlled by law, but at the
same time tempered by grace, until the time of Lord Bacon
and Lord Ellesmere, when the chancery was a distinct court,
and chancery practice a settled, formal system, there gained an
impression that such a court, regulated and moulded into a
settled and regular procedure, was a useful institution, and so
we find it acknowledged and established in every state in the
national union after about the year 1836.
JEarly English Efforts.-Procedure in law and chancery had
in England become quite technical and cumbersome, and in
1828 a decided effort was made in parliament to reform and
simplify legal procedure; but there was no thought in this or
in later attempts of abolishing the distinction between legal
1 On the same principle one is en- action tried in accordance with due
titled to have an equitable cause of process of law in such cases.
§ 648.] LAW OF ACTIONS. 1057
and equitable forms of action, or between law and equity, or
of abolishing forms of action. '
On the contrary, Lord Brougham professed that he would
make use of these ancient principles. This effort resulted in the
Bilary rules of 1834, which brought in so many important
changes in legal procedure that it necessitated a rewriting of
the great book upon common-law pleading by Chitty.
The Wew York Code.— In New York, about the year 1848, a
reform in procedure was instituted, based upon two principal
ideas. First, the abolition of the distinction between legal and
equitable actions; and second, the substitution of a single form
of action for all cases; the idea being to administer law and
equity in a single action, precisely as it was practiced in Penn-
sylvania until a comparatively recent date. The difference be-
tween the two systems was that in Pennsylvania the common-
law forms were preserved, and equity was administered under
these forms, while in New York the distinction between legal
and equitable forms, as well as all forms of action, was abol-
ished. -
The effect which it was supposed would follow these sweep-
ing enactments was that the distinction between law and equity
would be lost sight of; that that system of allegation which
was noted for its precision, and technically termed common-law
pleading, would be wiped out of existence, and be replaced by
the chancery mode of stating causes; and that the remedies in
courts would become more speedy, more certain, and less ex-
pensive. The result of that attempt at abolition is the code of
civil procedure. -
Judicial Construction of the Code.—As soon as the code
went into operation its application and construction fell into
the hands of the lawyers and judges; that is, the judicial de-
partment of the state. From the domain of legislative theory
it passed into the field of judicial practice and fell into the cru-
cible of experience. These tribunals very promptly decided
that the distinction between law and equity was inherent, and
was not abrogated, and that the nature of the cause of action
must clearly appear from the pleading. To pass by the evo-
lutions and changes of decades by which the New York code
1 Booth v. Farmers’ Bank, 65 Barb. 457.
T 058 LAW OF ACTIONS. [$648.
has developed into a vast mass, and the practice in that state
has become chaotic, the conclusion may be stated with per-
fect confidence that the distinction between legal and equitable
actions is as clearly marked in New York to-day as it was be-
fore the code went into effect; and that a cause of action which
is properly equitable in its nature and would not have been
cognizable in a court of law before the code, must, under the
code as construed by the courts, be presented and tried in ac-
cordance with the rules of the court of equity, and vice versa of
a common-law action; and that if there is an erroneous choice
of forms, the case must be dismissed, no matter how far it has
proceeded."
In England the reforms of 1834 were followed by additional
reforms in 1853 and 1860. In 1873 the judicature acts, based
upon similar principles of the New York code, were enacted.
Perhaps the most useful information which an elementary
treatise of this character can give on this subject is to call at-
tention directly to how this new idea has worked in actual
practice, and this, perhaps, can best be done by reproducing
the opinions of distinguished jurists and by citing a few legal
decisions as an example.”
1 The principle is that if the case is
one of which law or equity had at
common law exclusive jurisdiction,
that form must still be pursued. Met.
El, Ry. Co. v. Johnson, 84 Hun, 83;
Retcham v. Depew, 81 Hun, 271; cit-
ing Bradley v. Aldrich, 40 N. Y. 504;
Dudley v. Congregation, 138 N. Y.
451; Hawes v. Dobbs, 137 N. Y. 465.
See E. S. T. Co. v. Bickford, 142 N. Y.
244.
2 Sir Frederick Pollock Said in 1893:
“Twenty years ago the authors of
our judicature acts in England, men
of the highest eminence, but trained
exclusively in the chancery system,
went about to engraft considerable
parts of that system on the practice
of the courts of the common law.
What came of their good intentions?
Instead of the simplicity and sub-
stantial equity which they looked
for, the new birth of justice was
found to be perpleased practice, un-
certainty, vexatious interlocutory
proceedings, and multiplication of
appeals (delay) and costs (expense),
so that for several years the latter
state of the suitor was worse than
the former.” Perhaps the most per-
tinent expression is the very late one
contained in the opinion in Clydes-
dale Bank v. Paton, 74 Law T. R. 738
[1898], an appeal from Scotland. The
lord chancellor of England in his
opinion says: “By the precision of .
the Scotch pleading there is still a
necessity to set out the real cause of
action, which is capable of definite
and precise statement, which I re-
gret to say is no longer the case in
English pleadings. I therefore speak
with some degree of envy when I say
that at all events the Scotch jurispru-
dence has preserved something like a
system in which a definite and pre-
cise allegation of the cause of action
is required to be set out before a
§ 64S.] S
LAW OF ACTIONS.
1059 )
Unless these learned jurists are entirely at fault, the reform
has not attained the goal, either as to certainty, simplicity, ,
Speed or expense, and the abolition of forms of action has not
been attended with a more perfect procedure.
Jººperience in America has been equally long, and a few
opinions of great lawyers and judges will be sufficient to jus-
tify the position that well-settled forms of action are essential
to any Orderly procedure, and that any attempt to abolish
them is an attempt away from simplicity and certainty, and
tends only to delay, confusion and expense, and may extend
to such a limit as to violate the spirit of the constitution and
destroy the rights of the people as expressed by Magna Carta.
Uniformity is not to be desired; distinctions should not be ig-
nored. “The difference between having several and having
but one form of action is, as Prof. Pomeroy says (in note to
Sec. 40, p. 33, Eq. Jur.), “wholly superficial,” or, differently ex-
pressed, the unºformity sought by having only one is imagi-
Tvary rather than real. It is simply uniformity in name and not
in fact. The difference between a complaint in an action for
damages for maintaining a nuisance, and a complaint in an ac-
tion to recover possession of personal property, or damages for
its detention, in code procedure, is as great as between our
statement in the one case and simplified common-law declara-
tion in the other; and it is quite as short to say ‘an action of
replevin as to say “an action to recover possession of personal
property.’”
litigant is allowed to incur consider-
able ea pense in proving what may
after all turn out to be no cause of
action at all.” .
1 Mr. Leonard A. Jones, in an ad-
dress before the Virginia Bar Asso-
ciation, says: “Cases in the New
York Courts are surrounded with SO
many technical rules of practice that
it is difficult for the lawyer to avoid
the pitfalls of these technicalities
and bring his case before the court
upon its merits. The thousands of
decisions in that state upon matters
of practice under this code, enough
to fill a great number of volumes of
reports, attest the trouble the code
has been to the courts, the vexation
it has been to lawyers, and the great
cost and delay it has wrought to suit-
ors. It is therefore not a suprise to
find the president of the New York
State Bar Association, J. Newton,
Fiero, Esq., in his address at the an-
nual meeting for this year, declaring:
‘I am satisfied that the time has.
fully arrived when the profession
should protect itself in this matter
by insisting upon revision, condensa-
tion and simplification of the code.
of procedure.’”
2 The above is a substantial repre-
sentation of a communication from
Judge Simonton of Pennsylvania.
1060
[$ 649.
LAW OF ACTIONS.
SEC. 649. Forms of Action Essential.—A Distinct and Def.
Żnite Theory Must be Adopted.—The primary rule under every
form of procedure, code or common law, applied to all forms
of action, legal or equitable, is that the parties must adopt and
adhere to a definite and distinct theory of action and defense."
This, under the common law, was expressed by the rule that
there should be no departure in pleading and that the declara-
tion must conform to the writ, which was merely a corollary
of forms of action.”
1 Phillips’ Code Pl., sec. 202. See
Arms Co. v. Railway Co., Appendix,
post. “Pleading and a distinct issue
are essential in every system of juris-
prudence, and there can be no Or-
derly administration of justice with-
out them. If a party can allege One
cause of action and then recover upon
another, his complaint will serve no
useful purpose, but rather to ensnare
and mislead his adversary.” Romeyn
v. Sickles, 108 N. Y. 650; Supervisors
v. Decker, 30 Wis. 624. Judge Phil-
lips, in his excellent treatise on code
pleading, has stated this rule and ex-
plained it in a clear and simple man-
ner. Phillips’ Code Pl., secs 202, 354.
In Winchester Arms Co. v. New York
& N. H. Ry. Co. (Superior Ct., New
JHaven County, see Appendix), Judge
I’rentice presents one of the clearest
expositions of the doctrine of the
text, as applied to the Connecticut
practice act. He quotes Phillips’
Code Pl., sec. 31.
(a) Code Rule.— AEtna Power Co. v.
Hildebrand, 137 Ind. 462; Logansport
v. Uhl, 99 Ind. 531; 50 Am. Rep. 99;
Welsbeck v. Glass, 46 Mo. App. 209.
(b) Common Law.—Wilson v. John-
son (N. J.), 29 Atl. Rep. 419; T., W. &
W. Ry. Co. v. McLaughlin, 63 Ill. 389;
Longyear v. Minnesota L. Co., 108
Mich. 645. In Smith v. Rumsey, 33
Mich. 144, it was said: “The proposi-
tion that the court is bound to ad-
judge according to the case shown
and issues raised by the pleadings is
so evident, and has so repeatedly been
expounded and applied in this state,
that anything beyond a reference
to it would be scarcely excusable.”
Reed v. Jourdan, 109 Mich. 128. The
decree must conform to the claims
in the pleading. Id.
(c) Equity.—Jeffries v. Robbins, 167
Ill. 375; Ogden v. Moore, 95 Mich.
290. It is sometimes said that the
ground of action cannot be changed,
but this must be taken in a qualified
Sense. The rule only requires that the
Original cause be adhered to. Strang
v. Judge, 108 Mich. 229; Smith v.
Missouri Pac. Ry. Co., 56 Mo. 458;
Insurance Co. v. Judge, 77 Mich. 231.
The rule in chancery cases is that,
beside answering the complainant's
Case as made by the bill, the defend-
ant must state to the court in his
answer all the circumstances of
which he intends to avail himself by
way of defense; for it is a rule that
the defendant is bound to apprise
the complainant by his answer of the
nature of the case he intends to set
up, and that he cannot avail himself
of any matters which are not stated
in his answer, even though it should
appear in his evidence. Reed v.
Jourdan, 109 Mich. 128; 1 Barb. Ch.
Prac. 137; Fostick v. Van Husan, 21
Mich. 573; Higman v. Stewart, 38
Mich. 519.
2 The late Austin Abbott, in an
article commenting on the case of
U. P. Ry. v. Wyler, 158 U. S. 285,
stated quite justly that under the
common-law procedure the theory
§ 649.]
1061
LAW OF ACTIONS.
Change of theory by amendment is allowed on just terms, even
to the extent of bringing in a new form of action;' but such a
change cannot introduce a new cause of action either to in-
crease the recovery or to save from the bar of a statute, even
relied upon is indicated by naming
the form of action, and he adds that
the Code has made more confusion in
this matter than it has cured. 2 Uni-
versity Law Rev., No. 8, p. 269. See
Arms Co. v. Railway Co., Appendix,
joost. “Accuracy and technical pre-
cision have no terrors except for
the careless and the incompetent,
and the act of 1887 was not intended
to do away with them. As to all
imatters of substance, completeness,
accuracy and precision are as neces-
Sary now to a statement as they
were before to a declaration in the
settled and time-honored forms.”
Fritz v. Hathaway, 135 Pa. St. 280.
1 Snyder v. Harper, 24 W. Va. 206;
Mahan v. Smitherman, 71 Ala. 563.
The statute of amendments and
Jeofails is without doubt the great-
est reform which was ever devised.
Tiberally construed and intelligently
applied, it cannot fail to save the
party from Snares and pitfalls. Cures
'by its own force defects of form
(Holmes v. Preston, 70 Miss. 152), and
enables the court to promote the
ends of justice at all stages before
final judgment in the court of last
resort. In Illinois the courts have
gone to the extreme of enlightened
liberality. C. & P. Ry. Co. v. Stein,
75 Ill. 41; Gas Co. v. Granger, 118 Ill.
266. See, for full treatment, An-
drews' Steph. Pl. 473. Compare with
these Illinois cases, Harold v. Jones,
98 Ala. 348; Aultman Co. v. Gold-
Smith, 84 Ind. 547. The law of
amendments is not intended to un-
settle the rules of practice requiring
the adoption of a definite theory of
proceeding or defense, nor to vest in
the judges an unlimited discretion
Over established methods of proced-
ure. The substantial nature of the
action begun must be preserved.
Flanders v. Cobb, 88 Me. 488. Amend-
ment does not mean substitution.
See note, 51 Am. St. Rep. 414. Re-
gard must be had for the rights of
the opposite party, and so the stage
of proceedings is important.
There are at least six stages which
require a difference in discretion:
Before issue joined; after issue and
before trial; on trial; before judg-
ment by the trial court; after judg-
ment; in the appellate court.
Before issue joined the court may,
under New York code, allow a change
in cause of action, but of course no
judgment by default should be al-
lowed except after notice. Deyo v.
Moss, 144 N. Y. 216; Hoys v. Dickins,
28 Pittsb. L. J. 180.
On the trial the cause may not be
changed. Freeman v. Grant, 132 N.
Y. 22; Phelps v. Railway Co., 94 III.
584; Dexter v. Innes, 133 N. Y. 551.
In trial court while the case is on
appeal. World's Col. Exp. v., Scala,
55 Ill. App. 207.
In appellate court, where proof has
been allowed, without objection, re-
lating to the transaction alleged in
the pleadings, the court may order
amendments, to accomplish justice.
without remanding the case. Reeder
v. Sayre, 70 N. Y. 180; 26 Am. Rep.
567; Phalen v. Lawler, 102 N. Y.
228; Nichols v. Drew, 94 N. Y. 22;
Romeyn v. Sickles, supra.
Substituted Issues.—The doctrine
of implied substituted issue has been
upheld, but it is submitted that it is
a dangerous practice. Frear v. Sweet,
118 N. Y. 454. The authority of the
appellate court to direct amend-
ments extends only to causes where
1062, IAW OF ACTIONS. [$650,
though it is so intimately connected with the transaction stated
in the original pleadings, as to be distinguishable only by ele-
ments not of fact in the popular sense, but of the nature of the
obligation relied on." - i |
SEC. 650. Election of Remedies.—A choice of forms of ac-
tion is quite frequently allowed.” These actions always arise
out of transactions or by reason of tortious conduct. The trans-
actions may be conducted by means of express agreements, and,
besides these, the relation arising from the nature of the trans-
action may give rise to an obligation imposed by law, e. g., the
obligation of a carrier, or innkeeper, or bailee; and in such cases,
although an action on the contract may lie for negligent Omis-
sions or wilful acts, the law allows the injured person to base
his action on the obligation arising by operation of law.” Again,
a contract to perform some service or furnish some article at
a given price, or with no price fixed, when fully performed
will be the ground of an action of special assumpsit on the con-
tract; but here again the law allows a special action on the
legal obligation to pay for the benefit, called special assump-
sit." The conduct of one may be such, whether it be asso-
ciated with a transaction or contract, or wholly independent
of it, as to allow the choice of several remedies; or one may
convert the property of another by theft or otherwise. The
law permits the complainant to choose either to sue in form as
for the tort or wrong, or to sue as on an implied promise to
pay. In these and many other cases the law permits a choice
of one, but will not permit both to be pursued; and this is the
doctrine of election of remedies.” It is in fact nothing but a
choice of the form of action preferred by the injured party.
The codes introduced much uncertainty in this matter, but
the trial court had that power.
Reeder v. Sayre, supra; Harris v.
Tumbridge, 83 N. Y. 92.
1 That is, a common-law obligation
as distinguished from an express
contract or a statutory liability. Nat.
Stove Co. v. Sheahan, 122 N. Y. 461;
U. P. Ry. Co. v. Wyler, 158 U. S. 285:
C., B. & Q. Ry. Co. v. Jones, 149 Ill.
361; Andrews' Steph. Pi. 477, and
cases; Miller v. Bealer, 100 Pa. St.
583. The form and theory are here
the substance.
2 This is the subject of chapter 2,
Andrews' Steph. Pl.
3 See Andrews’ Steph. Pl. 57, 58;
Brown v. C., M. & St. P. Ry., 54 Wis.
343; 41 Am. Rep. 41.
4 Andrews' Steph. Pl. 59.
5 Id.; Terry v. Monger, 121 N. Y.
162.
§ 651.] LAW of ACTIONs. 1063.
the courts have required practically the same tests as are fur-
nished by the common law." -
SEC. 651. The Classification of Actions.—It was a rule of
the common law that no one pleading should present more than
One cause of action or one defense.” This fault was called in
law cases duplicity;” in chancery, multifariousness." In suits
at law, although several causes may be joined in one suit, each
cause must have a separate count, and this count must be
single.” Two causes cannot be joined in one bill in chancery.
The codes eliminate these apt designations and provide for
the same thing, viz.: that where two or more actions are joined
in One complaint they must be separately stated."
The same principles forbid the uniting in one bill, count or
statement a legal and also an equitable cause of action."
It is obvious, then, that under whatever form of procedure
the case may be prosecuted, it is essential to its proper presen-
tation in the pleading that the pleader shall be able to distin-
guish each known cause of action from every other. -
It is not to be expected that mathematical exactness can
be attained in marking distinctions between classes or causes
of action.” And so the rule is that, however multifarious the
facts may be, if they constitute but one connected transac-
tion or entire cause, they do not violate the rule of single-
ness.”
The classification into legal and equitable actions has been
sufficiently discussed. º
1 Here again the utility of definite
forms is seen; for, as Prof. Pomeroy
fairly admits, “How shall the com-
plainant indicate that he has elected?
Under the old (common-law) system.
no such question could arise. The
election was disclosed by the form
of action itself.”. Pom. Code Rem.,
§§ 558, 572. r
2 Andrews' Steph. Pl. 300.
3 Id.
4 Merwin's Eq., p. 526; Story, Eq. Pl.,
§ 271; Walker v. Powers, 104 U. S.
245; Davis v. Peabody, 49 N. E. Rep.
750. Multifariousness by reason of
improper parties is not here intended.
Boyd v. Hoyt, 5 Paige, 65.
5 Clearwater V. Meredith, 1 Wall.
26; Andrews’ Steph. Pl. 302.
6 Phillips’ Code Pl., § 202; Craft's
Ref. Co. v. Brewing Co., 63 Conn. 551.
And usually it is also required that.
each statement of a cause must be
numbered. Id.
7 Hunt v. Hollingsworth, 100 U. S.
100; Cherokee Nation v. Railway Co.,
135 U. S. 641.
8 See Craft's Ref. Co. v. Brewing
Co., 63 Conn. 551.
9 Andrews' Steph. Pl. 307. The last.
above case is in harmony. Phillips’
Code Pl, § 31. See Arms Co. v. N. Y.
& N. H. Ry. Co., reported post, Appen-
dix.
1004 LAW OF ACTIONS. [$ 651.
Classification of Eyvitable Causes of Action.— Having seen
that the old and the reformed procedures require, in the admin-
istration of remedies, that a separation of causes of action be
made, and each cause treated as only one, however many the
rules allow to be disposed of in a single suit, it follows logically
that equitable as well as legal actions must in practice be classi-
fied according to the nature of the cause of action.
The cause of action, says Phillips, is “a formal statement of
the operative facts that give rise” to the right of action, and
these formal statements are very clearly distinguished from
each other.” And in this matter it is essential to distinguish
between the grounds of action, the cause of action, and the
transaction in which and out of which these arise.”
Classification of equitable actions is attended with more diffi-
culty than is encountered in any other branch of the law.”
This is because of the peculiar nature of equitable causes; for
while one case may consist of facts constituting the elements
of a typical action of a certain kind, e.g., accounting, in another
case there may be a plurality of subjects, partaking of a dif-
ferent nature, involved in one connected transaction, and allow-
ing the exercise of several different species of remedies, either
all at Once or successively, as the case progresses. Thus, a single
bill in chancery may pray for a discovery, for an injunction to
stay the action of the defendant during the progress of the
Suit,” a ne ea eat, possibly, against his departure from the juris-
1 Code Pl., § 31. may choose to state. Phillips’ Code
2 The practitioner must determine Pl., 31, 202. Judge Prentice, in Arms
this at his peril. The question is fre- Co. v. Railway Co., approves of Judge
quently one of jurisdiction, and Phillips’ treatment, and has added
waiver by the parties will not al-
ways cure the defect. The court will
raise the question and may dismiss
the suit, though the federal courts
have in some instances ordered the
pleadings reformed and the case re-
docketed. McConnell v. Prov. Sav.
& L. Ass'n, 69 Fed. Rep. 113. Also in
Ark. L. R. Gas Co. v. Shall, 59 Ark.
409. So in Massachusetts by statute.
3 Judge Phillips has rendered the
profession a great service by making
clearer than ever before the distinc-
tions between the right of action, the
transaction out of which it grows,
and the cause of action which one
so much to the subject, and distin-
guished these matters from the trans-
action which gives rise to both the
cause of action and the right of ac-
tion, that I have inserted the report
of the case in the Appendix. Mr. Jus-
tice Baldwin, in Craft's Ref. Co. v.
Brewing Co., notices the origin and
meaning of “the transaction,” which
accord with ante, pp. 75, 76. The
three discussions add a new chapter
to the law of procedure.
4 See remarks of Prentice, J., in
Arms Co. v. Railway Co., Appendix.
5 State v. Brailsford, 2 Dall. 402.
§ 651.] LAW OF ACTIONS. 1065
diction of the court, the reformation of a contract, the account-
ing of transactions under it, and the specific enforcement of
the real agreement, by the making of deeds resulting in a
transfer of title; or, as may be readily comprehended, mingling
in a multitude of differing circumstances many species of equi-
table relief, but all growing Out of a connected transaction or
single general subject.
There will, however, in almost every case be a preponder-
ating subject which constitutes the main cause of action, and
to which other subjects are but incidents. The relief is a thing
distinct from the cause of action and really no part of it."
Legal actions are classified according to the nature of the
cause of action, and these, usually being simple, are generally
quite clearly of a definite character.”
These observations account for the fact that books upon
equity do not furnish as definite and clear an arrangement of
the matter treated as is found in many other branches of the
law, and, so far as the author's observation has gone, no two
authors agree in their analysis and outline.”
Classification Based on Distinction. Between Causes of Ac-
tion.— There are at least three points of view from which the
subject may be treated, or three grounds of classification,
namely: 1. The heads of equity jurisdiction, as noticed below.
2. The character of the relief asked; and 3. The difference be-
tween the nature of the cause of action or subject-matter of the
suit.* & -
1 Arms Co. v. Railway Co., Appen- subject of equity jurisprudence may
dix.
2The case of Rich v. N. Y. Cent. &
H. R. Ry., 87 N. Y. 382, presents an
example of the difficulty which may
attend such cases.
be conveniently, and perhaps most
properly, treated under the following
heads, designated according to the
more distinctive characteristics of
the relief afforded, or the general ob-
3 Compare Smith's Manual of jects sought to be effected:
Equity with Adams', Fonblanque's
or Willard's Treatise. Among the
more modern works on equity, still
less attempt at Order is made. Com-
pare Merwin's with Beach’s Modern
Equity, or Bigelow’s Equity.
4 The usual classification is away
from the matter of practical utility.
Smith’s classification is as follows:
Of the Division of Equity.—“The
I. Of Remedial Equity, specific-
ally so termed.
Of Executive Equity.
Of Adjustive Equity.
Of Protective Equity, irre- ,
spective of disability.
V. Of Protective Equity, in favor
of persons under disability.
VI. Of Auxiliary Equity.”
It will be observed that the “gen-
II.
III.
IV.
T066 LAW OF ACTIONS. [šš 652, 653.
The accompanying outline presents the recognized equitable
suits, classified according to the nature of the cause of action.*
SEC. 652. The Subjects of Equity Jurisdiction.— Property
Jºghts.-Equity acts in personam and does not assume to directly
adjudicate legal titles;” its peculiar province in reference to
legal titles being rather to determine the relative rights of sev-
eral persons differently interested in a single subject, and to
frame a decree which will give variant and unequal relief to
all the parties as their interests may appear, settling in one
suit a dispute which may have many branches, and which may
concern a multitude of parties.”
Personal Rights.--It is sometimes said that the jurisdiction
of a court of equity, unless enlarged by statute, is limited to the
protection of property rights." In modern times the jurisdiction
is not confined to such narrow limits, but has been extended to
the protection of civil rights, and rights strictly personal;" and
it must be further enlarged by the jurisdiction below referred
to as parens patriae. It protects the interests of infants and
persons under disability." -
SEC. 653. Heads of Equity Jurisdiction.— It is common to
ascribe to equitable jurisdiction the peculiar cognizance of ac-
cident, fraud, mistake and trust.
As to trusts, because a fiduciary relation exists between per-
sons in reference to a trust of property, the situation is not the
subject of an issue for trial in a court of law; and the very re-
lationship itself, being first recognized and made the subject of
definite rules by courts of chancery, may be said to be pecul-
iarly a subject of equity jurisdiction;" but as to accident, fraud
and mistake the same cannot be said.
4 In re Sawyer, 124 U. S. 213;
Fletcher v. Tuttle, 151 Ill. 41.
eral object” sought to be effected is
not the same as the subject of the
Suit, but is another way of expressing
the character of relief afforded; i.e.,
the disjunctive “or” does not intro-
duce a new basis of classification, but
is another way of putting the one al-
ready stated.
1 Post, p. 1073,
2 Swan Land Co. v. Frank, 148 U. S.
603.
* A striking example is Kilburn v.
Sunderland, 130 U. S. 505.
5 See Davenport v. Cloverport, 72
Fed. Rep. 689. The courts are very
cautious in assuming the jurisdic-
tion. See Corliss v. Walker Co., 57
Fed. Rep. 434; 31 L. R. A. 283; Chap-
pel v. Stewart, 82 Md. 323; 37 L. R. A.
283.
6 Aymer v. Roff, 5 Johns. Ch. 49; 1
Lawy. Ed. 538.
7 Yet even this must not be taken
too broadly, because the action for
§ 653.] LAW OF ACTIONs. 1067
It is not claimed by writers who divide the subject of equity
jurisdiction into these several heads that equity has exclusive ju-
risdiction, but only that it has a peculiar jurisdiction in reference
to these matters. This is confusing the different effects which
accident, fraud and mistake will have on a transaction (for it
always appears ea contractu) in equity from what it has in law.
A court of law cannot rescind, cancel or reform contracts. It
is this power which is peculiar, and not the jurisdiction over
these heads. t;
It is a rule of law as well as of equity that mere accident will
not relieve one from his obligations; and it is a rule of law that
a loss must lie where it falls unless there is some supervening
circumstance which carries the liability back to another.
As to Fraud.—A distinction is made as to the effect of fraud in
law and in equity, and that which may constitute the ground
of an action for fraud and deceit in law will not always defeat
a suit in that court, although quite sufficient" to support an
action for rescission in a court of equity." It being the peculiar
province of a court of equity to relieve against unconscionable
actions, it is the proper forum in which to bring a suit to set
aside a contract which was entered into through accident and
which the defendant refuses to cancel, the ground for the juris-
diction being the nature of the remedy sought rather than any-
thing in the subject-matter.
Fraud has in equity a broader meaning than at law. It arises
money had and received to the use of
the plaintiff is based on the fiction
of a trust. See the subject of Trust,
below.
i Effect of Fraud—Different in Law
and Equity (amte, pp. 723, 725).-The
distinction between fraud in the con-
sideration and fraud in the execution
of the contract must be borne in mind.
“The rule is familiar, wherever the
distinction between law and equity is
preserved, that, in a trial at law, fraud
in the execution of a deed may be
given in evidence; as that through
misreading, or by the substitution of
One paper for another, or by other de-
vice and trickery, he was induced to
Seal it, believing at the time that he
was sealing something else; but it can-
not be proved that the transactions
which preceded and induced the exe-
cution of the deed were fraudulent.
Where a party knowingly and volun-
tarily signs a deed, although he do so
inviolation of his duty and of the laws,
or be induced thereto by the fraud-
ulent contrivances of others, yet if it
be such upon its face as will con-
vey title, it can only be impeached
and set aside, and parol evidence be
received for that purpose, in a court
of equity.” Todd v. Mitchell, 67 Ill.
84–88; State v. Jones (Mo.), 33 S. W.
Rep. 23; Burrows v. Alter, 7 Mo. 424;
George v. Tate, 102 U. S. 564; Windett
v. Hurlbut, 115 Ill. 403.
106S LAW OF ACTIONS. [$653.
very frequently in connection with fiduciary relations where
good faith is required, and wberrima fides, the utmost good faith,
is exacted; and any falling short comes within the general term
“fraud.” without regard to real intent. Of this peculiar fraud
equity has peculiar cognizance, and as to such relations the rule
is that morality and equity are one and the same, and that it
is in these matters that equity is a court of conscience."
Nothing is more common than for the courts of law to enter-
tain an action for damages for fraud and deceit in procuring
contracts; but the jurisdiction of the courts stops at the award-
ing of damages. - r
A defense of fraud is just as available at law as in equity,
but the fraud must be such as shows that there was in law no
real mental assent to the contract.
Mistake, in its effect upon contracts, has been discussed in
connection with contracts. It is equally a ground of defense
in law and in equity, because it shows there was no contract in
fact. The same observation in reference to a remedy applies
to this head as well as to accident and fraud. Mistake, if un-
accompanied with negligence, is equally efficacious as fraud and
is ground for relief from all obligations.
Misrepresentation, being similar to fraud, differing from it in
the intent with which the false statement is made, falls equally
within the principle just mentioned.”
Besides these heads, or grounds, of jurisdiction, there are
other grounds peculiarly the subject of equity.
Through the parens patriae, by which is meant the care, over-
sight and fatherly supervision extended to all persons under
natural disabilities, lunatics, infants, married women and spend-
thrifts are the peculiar charge of the court of chancery, which
in this respect exercises a jurisdiction somewhat different from
pure equity, and takes the place of the personal sovereign. As
has been shown, it is the duty of the personal sovereign to
1 Hovenden v. Lord Annesley, 2 Sch.
& Lef. 634; Condit v. Blackwell, 22
N. J. Eq. 481; Michoud v. Girod, 4
How. 552; Turnpike Co. v. Field, 3
Mass, 201; Snodgrass v. Bank, 25
Ala. 161; 60 Am. Dec. 505; Buckner
v. Calcote, 28 Miss. 466.
*Inadequacy of the legal remedy as a
ground of equity jurisdiction includes
not merely the inaptitude of legal
remedies, but poverty or inability to
proceed at law. 1 Story, p. 25, n. ;
Gaines v. New Orleans, 17 Fed. Rep.
16–20; Worthy v. Tate, 44 Ga. 152;
Frederick v. Groshon, 30 Md. 436;
Clouston v. Sherer, 99 MaSS. 209.
§ 654.] LAW OF ACTIONS. 1069
furnish pretection to all those who are able to exercise voli-
tion and to give him their allegiance and support, and also to
those, his natural subjects, whom misfortune and Providence
have deprived of power and volition. The latter are thus within
the supervising care of the government, to which they would
owe allegiance were they su' juris.
SEC. 654. Conditions of Relief—Nothing can call a court of
equity into action but conscience, good faith and reasonable
diligence." A court of equity will not enforce a manifestly un-
conscionable claim, no matter how evidenced, but will leave the
parties to their remedy at law. Granting relief by affirmative
action is a different thing from an affirmative suit to rescind or
cancel a contract.”
The maxim is that he who comes into equity must come with
clean hands. The court is not open to one guilty in any degree
of fraud in the transaction involved in the suit.”
JDiligence.—Taches is neglect of the diligence and oversight
of one's affairs which is essential in order to have a right to
ask the court to relieve against action which due care would
probably have prevented; * but the term implies a knowledge
of one’s rights and a failure to act after such knowledge.”
Laches is the negligent Omission of ordinary prudence. But
where a fiduciary relationship exists between the complaining
party and the party complained against, which justifies reli-
ance by the one upon the other, and requires strict good faith
(wberrima fides) and complete information from the latter, the
mere omission of all oversight and diligence by the one entitled
to information Gannot, under such circumstances, be termed
laches.”
1 Hammond v. Hopkins, 143 U. S.
224.
2 Wadhams v. Gay, 73 Ill. 415;
Gay v. Parpart, 106 U. S. 699; Jen-
kins v. Int. Bank, 111 Ill. 462.
3 Johns v. Norris, 7 C. E. Green, 102;
Pomeroy, Eq. Jur. 397; Brown v.
|Brown, 66 Conn, 499.
4 Coffey v. Emigh, 15 Colo. 184; 10
L. R. A. 125, and note; Hammond v.
Eſopkins, supra.
5 Massey v. Heiskell, 80 Va. 583.
6 Bank v. Forster, 8 Watts, 12;
Vigus v. O’Bannon, 118 Ill. 334; Jack-
son v. Lynch, 129 Ill. 72; Farwell v.
Gt. W. etc. Co., 161 Ill. 522; Halsted
v. Grinnan, 152 U. S. 412; McIntire
v. Pryor, 173 U. S. 53. In strictness,
laches is an equitable defense and
depends upon various circumstances.
Halsted v. Grinnan, 152 U. S. 412.
It has no application between a.
trustee and a cestwi gue trust, and
from the mere fact of delay, because
1070 LAW OF ACTIONS. [$ 655.
There is a maxim of equity bearing upon the subject of dili-
gence, viz.: “Equity aids the vigilant, not the slothful.” He
who sleeps upon his rights is not likely to get relief from courts
of chancery.
Jimitation, Zaches, and Acquiescence.—Laches is frequently
spoken of as a defense in equity analogous to acquiescence and
limitations. In point of fact, diligence, if not an element of
the complainant's cause of action, is an essential ground of his
claim for the interposition of a court of equity; and while these
subjects may, for convenience of treatment, be grouped, they
are essentially different.
Laches is passiveness after knowledge; and where a consid-
erable delay intervenes between the committing of the wrongs
complained of and the filing of a bill in chancery, especially
where no fiduciary relation is shown,” it is an imperative re-
quirement of the federal courts, and a common requirement of
the state courts, that the bill should account for this delay.”
SEC. 655. Where Jurisdiction. Attaches Equity Will Admin-
ister Complete Relief–It is a fundamental rule of equity pro-
cedure that where the court obtains jurisdiction for any purpose
it will, so far as consistent with the preservation of the right
of trial by jury, do full and complete justice, even to the extent
of awarding damages, entering a personal judgment and di-
recting an execution.” Where a transaction warrants the ad-
there is no duty of inquiry and there
is a duty of full disclosure. Jackson
v. Lynch, 129 Ill. 72–84; 2 Story, Eq.,
sec. 1520; Perry on Trusts (2d ed.),
850; 1 Pom. Eq. Jur., sec. 418, note 1,
p. 460. Time is not so important as
the circumstances. McIntire v. Pryor,
173 U. S. 38.
1 Vigilantibus,
ocquitas subvemit.
2See above, $653.
Limitation.— A person standing in
a fiduciary relation is not allowed
to set up the statute of limitation to
a charge of fraud. Hovenden v. An-
nesley, 2 Sch. & Lef. 634; Turnpike
Co. v. Field, 3 Mass. 201; Snodgrass v.
Bank, 25 Ala. 161; Farwell v. Gt. W.
T. Co., 161 Ill. 595. -
77.077 dormientibus
Laches may bar in equity in less
time than would outlaw the case at
law. Pom. Eq. Jur. 917.
Acquiescence is affirmative and is
only shown by proof of conduct in-
dicating an intention to confirm a
transaction. Hoffman v. Cumberland
C. Co., 16 Md. 456; G., C. & S. Ry. Co. v.
ICelly, 77 Ill. 426; Badger v. Badger,
2 Wall. 90.
8 Bailey v. Glover, 21 Wall. 342;
Rosenthal v. Walker, 111 U. S. 190;
Henry Co. v. Drainage Dist., 52 Ill.
299.
4. It has power to adjudicate the
rights as they exist at the time of
the decree. Loaby v. Redmond, 66
Conn. 444. A recent case in Virginia.
shows the tendency to ignore the an-
§ 656.] LAW OF ACTIONS. 1071.
ministration of equitable relief of any character, the court
will determine all issues involved, determine legal rights and
grant legal remedies, which would, but for the equitable cir-
cumstances, be beyond the power of the court to grant. The
justification of the jurisdiction is in the equitable circumstances;
the justification of the broad exercise of power is the prevention
of a multiplicity of suits."
SEC. 656. Jurisdiction, how Contested.—In cases where courts
of law and equity have concurrent jurisdiction, while the court
in its discretion may, ea, mero motu, at the hearing dismiss a
bill, because it is not properly within the jurisdiction of equity
courts according to the Ordinary rules guiding such courts,
yet, if the defendant submits to the jurisdiction and does not
raise the objection by demurrer, he cannot insist upon the im-
propriety of the exercise of the jurisdiction.”
In order to allow a defendant to take advantage of a de-
fective jurisdiction after it has been exercised, the defect must
be one which shows the court wholly incompetent to grant the
relief sought by the bill.” If, however, the case is one wholly
beyond the jurisdiction, no laches of the defendant can avail to
confer jurisdiction, and he may raise the point at any stage, or
the court will dismiss the suit of its own motion.*
cient formulas which bound courts
of chancery. In the case mentioned
the court entered a personal decree
for the purchase-money of land pre-
cisely as a court of law would award
damages, ordered the land sold, and
directed that execution be withheld
until after the sale. The editor of
the Virginia. Law Register points out
the apparent departure from the an-
cient rules of procedure and that the
case really rests upon no exact prece-
dent. Being an extreme case, it
serves not only to illustrate the prin-
ciple involved, but also shows the
tendency of courts of equity to take
short cuts to justice irrespective of
precedent. The case is Fayette Land
Co. v. L. & N. Ry. Co., 93 Va. Sup, Ct.
of Appeals, 274 (1896), 2 Va. Law Reg.
357. So in Michigan it has recently
been held that where in a suit for a C-
counting in regard to partnership
property, it appears that there is no
property, but that the complainant is
entitled to a personal judgment, the
chancery court gave such a judg-
ment. McLean v. McTLean, 109 Mich.
258. See Smith v. Brittenham, 109
Ill. 540.
1 Keith v. Henkleman, 173 Ill. 137;
Wells v. Yates, 44 N. Y. 525; 1 Pom.
Eq. Jur., § 181. This is a well-settled
rule common to Code and common-
law states. Tunesma v. Schuttler,
114 Ill. 156. -
2 Seymour v. Long Dock Co., 20
N. J. Eq. 396; Kilbourn v. Sunder-
land, 130 U. S. 505.
3 Seymour v. Long Dock Co., 20
N. J. Eq. 396; Grandin v. Le Roy, 2
Paige's Ch. 508; 2 Lawy. Ed. 1009.
4 Hipp v. Babin, 19 How. 271;
Bowen v. Johnson, 12 Ga. 9.
68
1072 LAw OF ACTIONS. [$ 657.
It sometimes happens that a defendant who is sued at law
is desirous of having the case tried in a court of equity. If
the case is one which is properly cognizable either in law or in
equity, and the suit has been begun at law, a court of equity
will only interfere when the bill makes a plain case of such a
character, showing the inadaptability of a court of law to prop-
erly hear and determine the case.
There are many cases in which a court of equity will enter-
tain jurisdiction in matters of account in the first instance,
where, if the suit had proceeded at law, the same court would
not withdraw the matter from legal jurisdiction by injunc-
tion."
SEC. 657. The Forms of Equitable Actions.— Suits in equity
having a similarity of nature and object may be separated into
several species; and some of these will present several distinct
kinds of bills so well known as to have definite forms to fit.
them, varying somewhat, of course, to suit the circumstances
of each case, but yet sufficient to constitute a useful guide in
drawing the complaint. The knowledge of the distinction be-
ween these various classes and the elements of each individual
action is indispensable to the successful practitioner. Codes.
do not dispense with the utility of carefully prepared forms of
pleading suited to the nature of particular cases.”
Much of the mystery which surrounds chancery practice and
which causes the young practitioner to dread to enter the por-
tals of equity unattended is due to the lack of a clear under-
standing of the practice. The best service which can be done.
him is to remove the veil of mystery which envelops this sub-
ject. -
There are at least sixteen species of suits, differing essentially
in the subject-matter of the cause of action. Without attempting
to treat these in detail, the distinctive features of each may be
pointed out in such a way as to distinguish them from each.
other and from similar actions at law.
1 Crane v. Ely, 37 N. J. Eq. 564. twenty-six forms of answer. Boone.
3 Judge Maxwell, in his Code Plead-
ing, gives four hundred and sixty-six
forms of petition complaint. Each
of these is, of course, different from
the rest. He gives one hundred and
on Code Pleading has six hundred
and four forms; while the book of
forms and precedents in pleading
under the code by the late Austin Ab-
bott now makes three large volumes.
§ 657.] LAW OF ACTIONS. 1073
FORMS OF ACTION IN EQUITY.
Between persons in fiduciary relationship.
Accounting. Agºersons under legal obligation to
1. Suits to collect money. Rents and profits.
Creditors’ suits. t
Bills to foreclose mortgages.
Bills to enforce contribution and subrogation.
Specific performance.
2. Suits relating to en-
forcement of Con- } Against breach of personal contract.
tracts. Injunction. Against breach Of contracts and covenants
\ ! in deeds.
|Rescission.
Of contracts. Cancellation.
IReformation.
Correcting.
3. Suits to relieve from gº Setting aside.
obligations. - Of judgments. | Enjoining collection.
Bill of review.
Dissolution of marriage.
Divorce. *
Separate maintenance.
4. Bills quia timet; suits &
providing for future #º we clouds.
#": § Bill of peace.
protecting executory tº |
interestS. Against Waste.
*iºn name lationshi
e t rising from fiduciary relationship.
5. Bills relating to trusts. Tracing trust funds,
Charities.
TO Set aside.
6. Suits relating to wills. | #3;
To permit elections under.
. Administration of estates.
. Bills relating to dower and curtesy.
9. Dissolution of partnership.
10. Suits to restrain collection of taxes.
.
11. Bills of revivor. w
Fº nuisance.
tº JPreventing trespass.
12. Bills to prevent torts. Fublication of libel.
t Strikes and boycottS.
g & Bailees.
18. B.º. ºlish and } Mechanics.
tº Vendors.
14. Bills to protect per- } Brivacy. -
Sonal rights. Infants and non compos persons. }
15. Bills to partition land.
16. Bills of discovery.
Suits to collect money are very common on the law side of the
courts, but these are, except in the action of account, always
based on a state of facts showing an indebtedness and a promise
to pay, and all proceed on the idea of recovering damages for
breach of the promise to pay.
Mo Suit in Equity Ever Proceeds on the Theory of Directly
Awarding Damages.— In all these it will be observed that,
1074 LAW OF ACTIONS. [š 657.
though the end sought is the collection of the money, there is
intervening between the right to have the money and the col-
lection of it the real cause of action; for example, in accounting,
the obligation to account; in creditors’ bills, the removal of
fraudulent conveyances or liens; in foreclosure, the lien of the
mortgage giving the right to sell; in bills to enforce contribu-
tion and subrogation, where proper, the obligation to contrib-
ute; and in bills for rents and profits, the obligation to account
therefor." So that in all cases the equity is not the obligation to
pay, but conduct or a relation, which is more than the mere re-
lation of debtor and creditor. In many cases there is a con-
venient remedy both in law and in equity.”
The Suit for Accounting.”—The theory of the action of ac-
count, whether legal or equitable, is based upon either an ex-
press agreement to account, or a positive obligation to that
effect, or upon the assumption that the several demands in-
volved are in some manner so connected with each other, either
by contract or by a course of dealing, that the only thing which
either party contemplated and can equitably claim is the bal-
ance due. In such a case neither party could equitably sue for
the whole account, but should first demand an accounting “and
claim the balance,—and both legal and equitable tribunals will
enforce this obligation.” - -
There are cases which seem to be anomalous, where an ac-
counting will be taken in equity, seemingly based upon the
complication of the account; but generally these are cases of
mutual dealing, or of fiduciary relations; or there is some other
ground for equitable jurisdiction than mere complexity.
If the relation of debtor and creditor in fact exists, the old
action of account would not lie, nor will the modern suit in
1 Gaines v. New Orleans, 17 Fed.
Rep. 16.
2 “It is true that the common law
gave in certain cases an action of
account in which the judgment was
Quod computet, and thereupon an
..account was to be made between
the parties. But this antiquated
'action at common law has been
supplanted by the more beneficial
powers of a Court of equity, whereby
not only production of books and an
account can be compelled, but also
answer on Oath can be required and
a decree had for the sum due from
the defendant.” Neal v. Keel's Ex’rs,
5 T. B. MOn. 163.
3See Andrews' Steph. Pl., pp. 78,79.
4Torry v. Bryant, 16 Pick. 528;
Edmonston v. Hartshorn, 19 N. Y. 9.
5 Wilson v. Mallett, 4 Sandf. 112.
See also Eldridge v. Smith, 144 Mass.
35.
§ 657.] LAW OF ACTIONS. 1075,
equity lie, because the very purpose of the action of account.
and of the suit for accounting is to ascertain which party is
indebted, and to fix the amount." -
Against Whom the Action, Jies.—The common-law action of
account was an appropriate action against any defendant under
legal obligation to account to the plaintiff. It lay against a
guardian” in socage, a bailiff, a receiver, or between two mer-
chants, tenants in common,” or partners.” It was originally
confined in its scope as to parties, strictly to suits between the
parties interested in the transaction, and would not lie at the
suit of representatives or others beneficially interested;" but at
the same time, before the statutes mentioned below, a suit in
equity would lie against representatives." It did not formerly lie
in partnership cases where there are more than two partners."
The object of the suit was to compel the delinquent party to
account.”
Basis of the Obligation to Account.— Prof. Langdell is of the
opinion that the obligation to render an account is not founded
upon contract.” This seems, however, to be but a difference
in the manner of expression rather than in substance. While
the obligation to render an account is not necessarily founded
upon an express contract, the implied contract may rest upon
the duty to account growing out of the circumstances of the case.
1 In this sense the expression that
an action of account at law or in
equity is between debtor and creditor
is erroneous, and especially mislead-
ing to a student, because it tends to
obliterate the distinctions between
the subject-matter of the legal ac-
tions of assumpsit and debt, the suits
called creditors’ bills and the suit for
accounting, properly so called. Of a
like confusing tendency is the at-
tempt of Professor Langdell to intro-
duce a new nomenclature and a new
species of suit which he calls bills of
equitable assumpsit. Harvard Law
Review, 237.
2 Blk. Com. 461–464; Bertine v.
Varian, 1 Ed. Ch. 343; 6 Lawy. Ed. 165.
3 Park v. McGowen, 64 Vt. 173;
Duncan v. Lyon, 3 Johns. Ch. 351.
See note to this case, 6 Lawy. Ed. 645.
4 Both at common law and by stat-
ute an action of account may be
prosecuted between partners. The
remedy by bill in equity is nothing
more than a concurrent remedy. At-
water v. Fowler, 1 Edw.' Ch. 417; 6
Lawy. Ed. 193; Southgate v. Mont-
gomery, 1 Paige Ch. 41; 2 Lawy. Ed.
554,
53 Cooley's Blk. (3d ed.) 163.
6 Fonblanque's Eq., Bk. 2, ch. 7,
§ 6; Willard, Eq. Jur. *85.
7 Park v. McGowen, 64 Vt. 173. Cf.
McMurray v. Rawson, 3 Hill. 59.
8 Bracken v. Kennedy, 3 Scam. 558;
Haynes' Outline of Equity, 231; Dun-
can v. Lyon, 3 Johns. Ch. 351.
9 Harvard Law Review,
p. 243.
vol. 2,
1076 LAW OF ACTIONS. [$657,
The better opinion is that the action, except when statutory,
is based upon a contract, and that a relation of privity is
strictly regarded, so much so that formerly the action would
not lie against representatives, but only against bailiffs, re-
ceivers and guardians in socage, all of which stood, if not in
the situation of trustees, at least in a quasi-fiduciary relation
to the beneficial owner of the property in their hands.”
The reason why the common-law action of account was al-
lowed between merchants was an arbitrary one for the en-
couragement of trade, and was based upon the assumption that
their mutual course of dealing contemplated the rendering of
accounts and the payment of balances only.”
Creditors’ Bills.-Creditors’ bills, as the name implies, are
suits by creditors. They are but a means of subjecting a de-
fendant's property to the payment of his debts, where the ordi-
nary processes will not reach it.” The natural inquiry arises,
Why does equity take jurisdiction ? Ordinarily equity will not
take jurisdiction until the relation of debtor and creditor is es-
tablished by a judgment, since that would be to try a legal
1 Monk v. Harper, 3 Edw. Ch. 109:
S. C., 6 Lawy. Ed. 590. In a note to
this case in the Lawyers’ Edition it is
said: Where the claim does not arise
eac contractu, and sounds wholly in
damages, asking no discovery or in-
junction, equity will not have juris-
diction. Citing Planters’ Ass’n v.
Hanes, 52 Miss. 474; Teft v. Stewart,
31 Mich. 372. See also Fonblanque's
Eq., Bk. 2, Ch. 7, § 6.
2 Mr. Chief Justice Shaw, in Whit-
well v. Willard, 1 Metc. 216, says:
“Primarily, the idea of account, com-
putatio, whether we look to the
proceedings of courts of law or
equity, is the same matter of debt
and credit between the parties. It
implies that one is responsible to an-
other for moneys or some other
things, either upon the score of con-
tracts or of some fiduciary relation.”
3 McMurray v. Rawson, 3 Hill, 59;
Haynes' Outline of Equity, 230; Wil-
son v. Mallett, 4 Sandf. 112; Rens-
selaer Glass Factory v. Reid, 5 Cow.
587; Nelson v. Commissioners, 105
Ind. 287; Watson v. Penn, 108 Ind. 25.
4 Boyd v. Hoyt, 5 Paige Ch. 65; S. C.,
3 Lawy. Ed. 631.
Creditors’ Bills Against Stockhold-
ers.-There are suits called creditors'
bills, which seek to look beyond the
real debtor, which is a corporation,
and to reach those stockholders who
are equitably liable to pay, but be-
tween whom and the creditor there
is no privity. These suits may rest on
statutes; but, independent of stat-
utes, stockholders who are indebted
to the corporation, or have obtained
the funds of the corporation in fraud
of the rights of creditors, may be
reached by a suit similar in nature
to a creditor's bill. These suits, how-
ever, must be distinguished from a
pure creditor’s bill, where a corpora-
tion is a party; and from a bill to
wind up a corporation, which is stat-
utory. See Swan L. & C. Co. v. Frank,
148 U. S. 603; Hollins v. Brierfield
Coal Co., 150 U. S. 371.
§ 657.] LAW OF ACTIONS. 1077
right." It must ordinarily be shown that the legal remedy is
exhausted by a bona fide effort to collect the judgment, or that
the effort will be unavailing.” Creditors’ bills are brought to
remove an obstacle, which has been created by fraud, to the
enforcement of the complainant's rights by Ordinary legal pro-
cess.” •
By this equitable proceeding, every species of property of a
debtor, including debts, choses in action and equitable rights,
may be reached.*
All creditors in like situation may become parties to the
1)ill.5
Foreclosure Suits.--When mortgages came to be recognized
merely as securities the equity courts were active to prevent
forfeitures." All sales were liable to be opened by equity and
a right to redeem granted the debtor." It followed naturally
that the safest course for all parties was a bill to foreclose the
equity of redemption; * that is, to order that the property be
sold and the debt paid, the debtor to redeem' within a fixed
1 N. Y. Ice Co. v. N. W. Ins. Co., 23
N. Y. 360; Riverside Iron Works v.
Judges, 100 Mich. 124; Scheubert v.
Honel, 152 Ill. 315. -
2So if execution is returned by
order of plaintiff, it will not be suffi-
cient. Scheubert v. Honel, supra;
IHollins v. Coal Co., 150 U. S. 371.
But the judgment and fruitless eace-
cution are only evidence that his legal
Temedies have been eachausted, or that
he is without remedy at law. Where
it appears that a judgment would be
unavailing and the obtaining of it
a useless thing, it is not required.
Case v. Beauregard, 101 U. S. 688;
Nat. Tube Works v. Ballou, 146 U. S.
517. Mere absconding from the state
will not sanction a creditor’s bill.
Austin v. Bruner, 65 Ill. App. 301.
8 Wehrman v. Conklin, 155 U. S.
328. This case combines the elements
of a creditor's bill and a bill quia
dimet to remove a cloud.
4 Edmeston v. Lyde, 1 Paige, 637.
5 Myers v. Fenn, 5 Wall. 205. “The
fundamental principle upon which
bills of this kind are maintained is
equality of benefit and burden among
a numerous class of persons similarly
situated in respect to a particular
fund. The principle that equality is
equity has its foundations deeply
laid in equity law, and is one of the
most fruitful sources of equity juris-
diction.” Tunesma v. Schuttler, 114
Ill. 165.
6 Barrett v. Hinckley, 124 Ill. 32. A
power of sale without suit does not
prevent a foreclosure in equity. Mar-
tin v. Ward, 60 Ark. 510.
7 Where the transaction takes the
form of an absolute sale, the form of
action to prevent a forfeiture is a
bill by the mortgagor to redeem.
Eames v. Hardin, 111 Ill. 635. And
where the day of payment in a
formal mortgage passes, and the
mortgagee does not bring Suit, the
only way to clear the title is by a
bill to redeem. Merwin, Eq., §§ 93,
677; Barrett v. Hinckley, 124 Ill. 32.
82 Cooley's Bik. (4th ed.) 159, note;
Adams, Eq. 113; Merwin, Eq., § 678.
1078 LAW OF ACTIONS. [$ 657.
time or to be forever barred." A strict foreclosure is one giv-
ing a fixed time to pay, in default of which a sale without re-
demption is allowed.” - -
Contribution and subrogation are rights similar in nature, but
different in form, and sometimes both appear in a single trans-
action. Where two are liable and one pays the whole, the lat-
ter may have an action at law for the pro rata share; and if
securities are held by one, equity will take jurisdiction to apply
them to the benefit of all.” Subrogation, on the other hand, is
where one, being under a secondary obligation by contract,”
as, for example, a surety, pays the debt; here he is entitled to
stand in the shoes of the creditor, and equity will prevent the
canceling of securities by the creditor.” Again, where several
are so interested in property that one, in order to protect him-
self, must pay another's debt, he is entitled to be subrogated to
the right of the creditor paid." This doctrine comes from the
civil law, and the first class of subrogation is called conven-
tional, the latter legal, subrogation."
Suits to enforce contracts by specific performance are only
cognizable in courts of equity, and are there entertained only
in special cases, where the thing stipulated to be done, when
it relates to property rights, is certain, and requires merely
a simple act of conveyance to complete it.” Where an ac-
tion of damages is not adequate to do complete justice,” and
1 The mortgaging of railroads and
foreclosure of these mortgages gives
rise to rules and procedure peculiar
to this class of foreclosure. See Rail-
way Co. v. Fosdick, 100 U. S. 68.
22 Cooley's Blk. (4th ed.) 159, note.
3 See index, Contribution. Courts
will not enforce contribution be-
tween wrong-doers who are in part
delicio (in equal fault). Selz v. Unna,
6 Wall. 336; Lowell v. B. & L. Ry.
Co., 23 Pick. 24.
4 An insurance company which has
paid a loss has a right to enjoin the
settlement of a suit by the insured
against a person wrongfully causing
the loss, and to compel their right of
subrogation. Pennell v. Hartford
Ins. Co., 2 Ill. App. 609.
5 Kratz v. Mousinger, 110 Ill. 372.
See Principal and Surety. Equity
requires that all securities shall be
Kept alive and marshaled, i. e., as-
sembled for the benefit of a person
in any way liable on or postponed by
them. Ocobock v. Baker, 52 Nev.
447; 66 Am. St. Rep. 519.
6 Barnes v. Carnack, 1 Barb. 396;
Hayes v. Ward, 4 John. Ch. 123; note
in Lawy, Ed., vol. 1, p. 786; Home Sav.
|Bank v. Bierstadt, 168 Ill. 618; 61
Am. St. Rep. 146, note.
7 Home Sav. Bank v. Bierstadt,
Supra. -
8 It is seldom that a contract other
than one relating to land will be
specifically enforced. Clark v. White,
12 Pet. 178.
9 Penn v. Lord Baltimore, 1 Wes. 441,
a suit to compel the execution of
§ 657.] IAW OF ACTIONS. 1079.
the thing stipulated to be done requires the personal talent of
the promisor, the remedy is by injunction against breach in
the first case and by an order to perform. In both the juris-
diction is purely in personam, and the locality of the property
to be affected, or the place of performance, is immaterial, pro-
vided the jurisdiction of the person is within the court.”
Suits to Relieve from Obligations, Contracts and Conveyances.—
The nature of the suits enumerated under this head is easily
understood by any one who has read in former pages of the
book the treatment of the subjects involved. The jurisdiction
of the court is clearly proper because of the inability of a
court of law to act. A court of law may refuse to enforce
when a contract is wanting in elemental facts or is procured
by fraud; * but it cannot act affirmatively to relieve by rescis-
Sion, cancellation or reformation.
Where the document is a conveyance of land the jurisdic-
tion depends on the fraud, in procuration, but the court having
taken cognizance of the case for one purpose will execute the
decree by making the reconveyance, and will put the party in
possession. Hence such suits are sometimes called equitable
ejectment.”
The jurisdiction in divorce is the result of uniform practice
from the earliest time since the spiritual courts yielded up their
jurisdiction to the chancery. -
Suits to Reform or Cancel Obligations.—As was pointed out in
connection with the subject of contracts, one can only become
bound by his real consent, and any apparent obligation pro-
cured by fraud or executed by mistake will not bind. To re-
lieve against these by rescission, cancellation or reformation is
the peculiar province of equity.” A judgment is an obliga-
deeds relating to the boundary of
land in America.
1 Lumley v. Wagner, 1 De G. & M.
604; Merwin, Eq., § 771. The chan-
cellor said in De Rivafinoli v. Cor-
setti, 4 Paige Ch. 262, that it was
well settled that a bird that could
sing, but would not, should be made
to sing. See note, to this case, 3
Lawy. Ed., N. Y. Ch., p. 429. The re-
strictive Covenants in deeds may be
enforced by injunction.
2 Massie v. Watts, 6 Cranch, 148.
8 But the law courts do not gen-
erally rescind except where the fraud
relates to the execution and ren-
ders the contract void. Windett v.
Hurlbut, 115 Ill. 403; Todd v. Mitch-
ell, 67 Ill. App. 84.
4 Boone v. Chiles, 10 Pet. 177; Smith
v. Brittenham, 109 Ill. 540.
5 Hearne v. Marine Ins. Co., 20 Wall.
490. The nature of the document
which stands in the way of a legal
1080. LAW OF ACTIONS. [$ 657.
tion of record, but is always procured by one party against the
Other. Consent judgments are in fact but contracts, because
the court is not called on to exercise deliberation." A judg-
ment in a litigated case may be procured by fraud, or may be
larger or smaller than is just by reason of mistake. A default
decision or pro confesso decree may have been procured by the
fraud of the plaintiff in misleading the defendant, or without
giving him notice.” -
The principles applicable to the one extend to the other;
fraud and mistake are grounds for relieving against all these.
It was at one time argued that chancery could not interfere
with judgments of other courts, but that is answered by the
rule that the order of the court of chancery operates against
the person and not the judgment, compelling him to release or
enjoining its collection.”
Bills of review differ from original bills to set aside judg-
ments for fraud in this: that the former are in the nature of
a petition for a new trial or rehearing for newly-discovered
evidence, and the filing of such bills is permitted or disallowed
in the sound discretion of the court, while the latter are orig-
inal bills for relief, and may be filed as of right.”
combine both grounds of suit.”
A bill may
right is quite immaterial. Where a
mortgage was canceled and a new
one taken in its stead, in the mistaken
belief that there was no other lien,
when in fact there was an interven-
ing mortgage of record, it will be re-
instated, where such reinstatement
will place all parties in statu quo,
though the mistake could have been
avoided by greater vigilance. Mc-
Renzie v. McKenzie, 52 Vt. 271; Bruse
v. Nelson, 35 Iowa, 157; Association
v. Thompson, 32 N. J. Eq. 133.
1 Jenkins v. Robinson, 1 H. L. Cas.
117; Edgerton v. Muse, 2 Hill (S. C.),
51; Farwell v. Great W. Tel. Co., 161
Ill. at p. 600; Wadhams v. Gay, 73 Ill,
415.
2 Any fact which shows it to be
against conscience to execute a judg-
ment is ground for relief. Marshall
v. Holmes, 141 U. S. 589. A judg-
ment may be opened because of per-
jury of the plaintiff, or perjury pro-
cured by him. Meyers v. Smith, 8
N. W. Rep. 273. And a decree in chan-
cery procured on a perjured answer
may be opened. Grover v. Faurot,
76 Fed. Rep. 257; Munroe v. Callahan,
55 Neb. 75; Meyers v. Smith, 80 N. W.
Rep. 273; Adamski v. Wieczorek, 170
Ill. 374,
3 Id.; Wadhams v. Gay, 73 Ill. 415.
The court is not acting as a court of
review, and it follows that the pro-
ceeding may be in any court where
jurisdiction of the parties may be ob-
tained. Davenport v. Moore, 74 Fed.
Rep. 945; Remer v. Mackay, 35 Fed.
Rep. 86.
4 Adamski v. Wieczorcek, 170 Ill.
373; Hancock v. Hutchinson, 76 Va.
5 Manufacturing Co. v. Lindblom, 68 Ill. App. 539.
§ 657.] LAW OF ACTIONS. 1081
Suits to Provide Against Future Contingencies and to Pro-
fect Evecutory Interest.— This is one of the most interesting
phases of equity jurisdiction.
Bills to remove clouds on the title of land, or bills to quiet
title, are allowed where one is in possession of land and an-
other has an apparent muniment of title to it, which casts a
suspicion upon the title of the one in possession and threatens
his quiet enjoyment of his property." The only legal actions
to try title afforded by the common law were as to suits brought
by persons out of possession. Consequently, for one in posses-
sion, the only way to settle a title, and to clear it, was by a
bill quia timet,” as it was called, to remove a cloud.
“The general principles of equity jurisprudence as adminis-
tered both in this country and in England permit bills to quiet
title to be filed only by a party in possession against a defend-
ant who has been seeking to establish the legal title by re-
peated actions for ejectment, and, as a prerequisite to such
bill, it was formerly necessary that the title of the plaintiff
should have been established by at least one successful trial at
la W.” 3
“At common law a party might, by successive fictitious de-
mises, bring as many actions of ejectment as he chose, and a
bill to quiet title was only permitted for the purpose of pre-
venting the party in possession being annoyed by repeated and
vexatious actions. The jurisdiction was in fact only another
exercise of the familiar power of a court of equity to prevent
a multiplicity of suits by bills of peace.””
The bill states the title of the possessor, the pretended or
fraudulent title of the defendant, and prays that it be removed.
Jºquity cannot affect legal titles is one of the maxims of the
court " which is most apt to confuse one who sees, perhaps, a
609. To obtain new trial in equity
on ground of newly-discovered evi-
dence, complaint must show evidence
was not discovered in time to have
been used in legal action. Snider v.
Rinehart, 20 Colo. 448.
1 Wehrman v. Conklin, 155 U. S.
314; Hart v. Sansom, 110 U. S. 151;
Bracken v. Preston, 1 Pin. (Wis.) 584;
Johnson v. Gibson, 116 Ill. 301.
21 Story, Eq. Jur., sec. 701; Wil-
lard, Eq., p. 328.
8 Pom. Eq. Jur., secs. 253, 1894, 1896.
It lies by one having an equitable
title. Tuffree v. Polhemus, 108 Cal.
670.
4 Wehrman v. Conklin, 155 U. S.
314. “A statement of the under-
lying principles of such bills is found
in the opinion of the Court in Hol-
land v. Challen, 110 U. S. 15, 19.”
5 Penn v. Ld. Baltimore, 1 Wes. 444;
2 Ld. Cas. ICG. Specific perform-
ance of agreement relating to bound-
1082 LAW OF ACTIONS. [$ 657.
warranty deed removed as a cloud; and how, then, can it be
said equity does not deal with the title?'
Jºyuity acts in personam is the great maxim or rule which
not only designates the jurisdiction, but controls the remedy.
The jurisdiction of the person, then, is the all-essential thing;
the locality of the land is immaterial.”
The decree compels the defendant to convey on penalty of
contempt, or in modern times the court has made the remedy
complete by making the conveyance in his name if he refuses.”
Equity will not directly decree the title from one to another
by a direct decree.*,
Interpleader, Bill of.--It frequently happens that one has
in his possession, as debtor or custodian, money or property
in which two or more have an apparent interest and which they
claim, but where the situation is such that it is unsafe for the
debtor or custodian to decide which is the proper party to have
the money or property. In such cases equity will entertain a
bill of interpleader to prevent either from suing him until the
legal rights are adjudicated either in the law courts or in
equity.”
In such a case the custodian should be indifferent in his in-
terest or desire as to who should secure the fund."
collude with neither."
Eſe should
The matter must be one fairly open to
dispute, but it is not necessary that he wait till he is sued.”
The peril of decision and the avoidance of vexation are the
grounds of jurisdiction.”
ary of land in Pennsylvania. Pike
v. Hoare, 2 Eden, 182. Bill to try
validity of a will devising land in
Pennsylvania. Massie v. Watts, 6
Cranch, 148; Gardner v. Ogden, 22
N. Y. 332; Wilhelm’s Appeal, 79 Pa.
St. 120.
1 Davis v. Headley, 22 N. J. Eq. 115;
Akin v. Lloyd, 100 Ill. 19; Cooley v.
Scarlett, 38 Ill. 319; Remer v. Mackay,
35 Fed. Rep. 86.
2 Binney’s Case, 2 Bland Ch. 145;
Enos v. Hunter, 4 Gilm. 215.
3 White v. White, 7 Gill & J. 210.
4 Cooley v. Scarlett, 38 Ill. 319;
FIart v. Sansom, 110 U. S. 151.
5 State of Georgia v. Brailsford, 2.
Dall. 402; S. C., Id. 415; Richards
v. Salter, 6 John. Ch. 445. The court
may adjudicate the rights of the
defendants. Id.; Story, Eq. Pl.,
§ 291; McClintock v. Helberg, 168 Ill.
384. An essential ancillary process
in the suit is injunction against other
suits by the claimant.
6 Haggart v. Cutts, 1 Cr. & Phil.
204; Cogswell v. Armstrong, 77 Ill.
139.
7 Richards v. Salter, supra.
8Id.; Spring v. Insurance Co., 8
Wheat. 268.
9Id. The difference between a
strict bill of interpleader and one in
the nature of such a bill lies in the
§ 657.] IAW OF ACTIONS. 1083
Bills of peace proceed upon the idea of preventing a multi-
plicity of future suits where there are many parties who might
have joined, but who were not obliged to and did not join in
a suit which has already been heard. The bill in effect makes
them parties and enjoins all further proceedings."
Injunction against waste is by the owner of the remainder or
reversion to prevent spoliation by the owner in possession.”
Bills to perpetuate testimony are very uncommon, but are not
obsolete. The idea of such suits is to preserve evidence for a
contingency which will in all probability arise, but concerning
which no present suit can be brought. Thus, a remainderman
may perceive the necessity of evidence which can only be used
in the future.” Statutes regulating the preservation exist in
some states, but in the absence of these equity will give relief.
Trusts.--It is uniformly held that pure trusts are not cogni-
Zable by the courts of law. They are, as we have seen, the
creatures of the court of equity, and only these courts have the
power to establish, control and direct same. The relation be-
tween the beneficiary and the trustee is an equitable relation,
and for this reason courts of law have no jurisdiction.
The trusts here contemplated as within the peculiar jurisdic-
tion of equity are the active continuing trusts," and not the
casual trusteeship which arises as to a particular matter or
thing in the course of trade or commerce. The latter are
cognizable in equity, but are not the direct object of the trans-
action out of which they arise.”
Tracing Trust Funds.-The rule of equity that a fund or
property once impressed with the character of trust property
interest of the complainant. New- v. Bloodgood, 7 Johns. Ch. 97. A
hall v. Kastens, 70 Ill. 156; 2 Story,
Eq. Jur., § 824. And the only effect
is on the costs, which in a strict bill
should never be taxed against the
complainant, but in the other case
are within the discretion of the court.
Groves v. Santell, 66 Fed. Rep. 179.
1 Eldridge v. Hill, 2 John. 282; Alex-
ander v. Pendleton, 8 Cranch, 468;
Wehrman v. Conklin, 155 U. S. 314.
*See Real Property.
& Smith, Man. Eq. 486; 2 Story, Eq.,
§§ 1505–13.
4. Sturt v. Mellish, 2 Atk. 610; Kane
court of equity has jurisdiction of
an action which, in addition to a re-
covery of money, seeks to establish
a trust in favor of plaintiff and to
obtain a sale of the property. Town-
send v. Vanderwerker, 160 U. S. 171.
* A pure trust is created “where
property is conferred upon and ac-
cepted by one person on terms of
holding, using or disposing of it for
the benefit of another. Per Owen,
C. J., in Mannix v. Purcell, 46 Ohio
St. 102; 15 Am. St. Rep. 562.” Can-
non v. White, 125 Ill. 412.
1084. LAW OF ACTIONS.
[$ 657.
will be so regarded and followed through all its mutations,"
extends its operation to every character of trust, and as be-
tween the parties occupying the relation is given the fullest
operation. As between third persons purchasing the property,
or creditors of an insolvent trustee, the identity of the prop-
erty is important. It has generally been held that it is essen-
tial to establish the identity in order to save it to the owner;
and that unless this can be done, he can only be allowed the
rights of a creditor.”
Public charities, being in the nature of trusts requiring the
Continuing exercise of supervision, control and direction, is a
matter entirely foreign to the common-law courts and has
always been the peculiar subject of equity jurisdiction.
Wills — Construction and Contesting.—The probate of wills
is not primarily the subject of equity jurisdiction, but is quite
generally committed to a court of probate. It has been held
quite uniformly that there was at common law no jurisdiction
in equity to contest a will for fraud or undue influence.” These
decisions declare that chancery had no jurisdiction, but the
fact is to the contrary; equity did exercise such a jurisdiction
on such ground, directing the issue, whether there was a will
(devºsavić ve! non), to be tried by a jury in a ſaw court, and,
unlike other cases, the verdict of a jury is not merely advisory,
1 Ind., T. & T. Ry. Co. v. Swannell,
157 Ill. 616. -
2 Cook v. Tullis, 18 Wall. 332; Cal-
vin v. Gleason, 105 N. Y. 256. The
cases on this subject are numerous.
A citation of the extreme ones will
afford access to the whole line. Oil
Co. v. Hawkins, 74 Fed. Rep. 395; 20
C. C. A. 368, Criticised in Met. Bank v.
Campbell Co., 77 Fed. Rep. 705; Bank
v. Hammel, 14 Colo. 259; Van Allen
v. American Nat. Bank, 52 N. Y. 1.
The doctrine that theidentical money
Or thing must be ascertained, even
though the mass in the hands of the
trustee is much larger, is under pres-
ent conditions harsh, technical and
inequitable, and the tendency is to
give the cestuº gue trust a preference
Over general creditors. See note sub.,
State v. Foster, 5 Wyo. 199; 63 Am.
St. Rep. 47; Springfield Int. v. Cope-
land, 160 Mass. 380; Myers v. Bond, 51
Ran. 87; 37 Am. St. Rep. 263. In the
case of funds collected, the question
is affected by the custom to mingle
the fund, or by directions which, in
effect, negative that right. See Morse
on Banks, sec. 567; Wallace v. Stone.
(Mich., 1895), citation and dissent.
3 The opinion is based on Kerrich
v. Bransby, 3 Bro. P. C. 358 (1727);
Gaines v. Fuentes, 92 U. S. 10; Brod-
erick’s Will, 21 Wall. 503; Spaulding
v. White, 173 III. 127.
4 Webb v. Claverdam, 2 Atk. 424;
Powys v. Andrews, 2 Bro. P. C. 476;
Boyse v. Rossburgh, 3 De G., M. & G.
817; Haynes' Outline Eq., p. 189; Col-
ton v. Ross, 2Paige, Ch. 896; Spence, Eq.
Jur. treats it as the obsolete jurisdic-
tion of chancery. Vol. 1, p. 701.
§ 657.] LAW OF ACTIONS. 1085,
but final." So it can hardly be said that modern statutes have
given equity power to try the validity of a will or have changed
the ancient law. Chancery will not take jurisdiction to construe
a will for future guidance of parties, except in so far as trustees
may require the oversight of chancery in the present execution
of their trust.” * -
Suits relating to forts and crimes, as such, are not within the
jurisdiction of equity to prevent or punish.” But this subject
will illustrate the flexibility of the jurisdiction of this branch
of remedial justice. Peculiar circumstances of such a nature
as to overshadow the form which the impending injury is tak-
ing often impels the court to act.
Abatement of nuisances," both at the suit of private persons
and public officials, is a well recognized class of equitable suits.
The remedy is by injunction and an order of removal.”
The remedy does not prevent a private action for damages
or a criminal prosecution. The grounds of the jurisdiction are
the inadequacy of any remedy by Way of mere damages and the
necessity for speedy reparation."
Trespasses.— The court of equity will not ordinarily interfere
to enjoin a trespass to property, but will leave the party to his
action at law; but there may be circumstances when, although
the act is a mere trespass pure and unqualified, the consequences
of it are so serious and calculated to inflict such lasting and
irreparable damages that the rules for assessing damages afford
no adequate compensation."
Thus, where the trespass consists
1 Moyer v. Swygart, 125 Ill. 262;
Brown v. Judges, 75 Mich. 274. The
proceeding in the probate court is eac
parte; In chancery it is adversary. It
has some features of appellate pro-
ceedings, but there are new parties.
See McArthur v. Scott, 113 U.S. 340–
386. -
2 Minot v. Taylor, 129 Mass. 160;
Washbon v. Cole, 144 N. Y. 294.
3 In re Sawyer, 124 U. S. 200.
*A nuisance is not easy to define,
but the idea of a nuisance is the
doing of that which, under some cir-
Cumstances, would be innocent, at
Such a time and under such circum-
stances as to inflict unnecessary or
improper injury to another or to the
public. Cooley, El. Torts, 232; State
v. Luse, 9 Houst. (Del.) 376.
5 Taylor v. P. K. & Y. Ry. Co., 91.
Me. 193; 64 Am. St. Rep. 216.
6 Mugler v. Kansas, 123 U. S. 673.
7 The power of a court of chancery
to enjoin a trespass upon land and
the boxing and scraping of trees to
obtain turpentine is sustained in Wig-
gins v. Williams (Fla.) 30 L. R. A.
754, by virtue of a statute, notwith-
standing the constitutional guaranty
of a right to trial by jury; but the
act is held inoperative in respect to
an award of damages for a mere tres-
pass cognizable at law. Where the
3.086 LAW OF ACTIONS. [$ 657.
in the seizure of the whole of a stock of goods, the consequences
involved are generally the loss of credit and destruction of busi-
ness, and equity may properly enjoin the seizure or sale upon
an attachment or execution."
Jöbels were formerly regarded as crimes, and this was then
considered sufficient to prevent jurisdiction.” When this reason
was outgrown the doctrine of the liberty of the press and the
danger of legal censorship were sufficient, and these still have
weight, and, with the supposition that the remedy at law for
damages is sufficient, has governed the majority of the courts
to refuse relief in equity.”
Strikes and boycotts have recently become of such frequency
and involve so many rights, and are so serious in apparent con-
Sequences, that courts have taken jurisdiction to prevent, not
the strikes," but torts and trespasses which experience shows
usually accompany them.” The boycott proceeds on other
grounds, being a conspiracy to injure one, which, if partici-
pated in by many, is not adequately handled in law courts.
Equity seeks to protect and prevent irreparable injury which
threatens. -
Jºiens fall naturally under the cognizance of equity for the
reason that they always involve an equitable relation between
the principal parties and frequently involve numerous inter-
ests of third persons.” #
trespasses are continuing, the juris-
diction may rest quite clearly on the
idea of a bill of peace, and to prevent
a multiplicity of suits. Bowline v.
Crook, 104 Ala. 130.
1 Watson v. Sutherland, 5 Wall. 74;
Van Norden v. Morton, 99 U. S. 378.
2 See observations, In re Debs, 158
TJ. S. at p. 593.
3 Boston Diatite Co. v. Florence
Mfg. Co., 114 Mass. 69; Whitehead v.
Kitson, 119 Mass. 484; Brandeth v.
Tuance, 8 Paige, 23; Singer Sew.
Mach. Co. v. Dom. Mach. Co., 49 Ga.
70. And in Kidd v. Hovey, 28 Fed.
Rep. 773, the jurisdiction was denied.
Emack v. Kane, 34 Fed. Rep. 46; Bell
v. Singer Sewing Machine Co., 65 Ga.
452; Meyer v. Devries, 64 Md. 532;
Chase v. Tuttle, 27 Fed. Rep. 110;
Ass’n Co. v. Boogher, 3 Mo. App. 173,
are decisions in favor of the jurisdic-
tion.
4 In re Debs, 158 U. S. at p. 598.
This whole subject is very ably pre-
sented in 11 Harv. Law Rev. 488,
where all the authorities are ex-
amined.
5 Vegelohn v. Guntner, 167 Mass.
92. In this case there is vigorous
dissent and able discussion. Oxley
Stave Co. v. Coopers’ Int. Union, 72
Fed. Rep. 695.
6 E. g., in mechanics’ and contract-
ors’ liens the subject of the suit is
almost uniformly cognizable at law,
but the necessity or convenience
of providing for the protection of
§ 657.] LAW OF ACTIONS. 1087
Administration of estates is never as such committed to equity,
but is taken cognizance of to prevent fraud or to administer a
trust, and once the jurisdiction attaches the court may admin-
ister the estate completely, though it is seldom done."
Dissolution of partnership can only be decreed judicially by a
court of equity because of the necessity for accounting,” as in
general one partner cannot sue another.
The collection of taa!es may be enjoined in equity, but only
On grounds of want of power to levy, and fraud in the levy, or
where the proceedings leading up to the judgment are void.”
Aills to protect personal rights have been spoken of; they
are outside the ordinary heads and subjects of equity, and are
so far defended on some analogy to a property right rather
than the mere right of privy or personal comfort.”
The paren's patria, furnishes, as we have seen, a distinct class
of cases.”
Partition of land is not necessarily an equitable action, and is
regulated by statutes in most of the states allowing a proceed-
ing in the common-law court; but the reason for equity juris-
diction is frequently found in a prayer for an account of rents
and profits."
Where title is denied, the federal courts will decline to take
jurisdiction in equity, because of the right of trial by jury;"
but in Illinois all matters of title and clouds on the same are
settled in one suit on the equity side of the court.” Generally
a trial by jury is not allowed on the equity side as to questions
of title, and in some states the codes extend this to all civil
actions.” -
The practice is to decide the questions of title, and then ap-
various interests influences the leg-
islators to give equity jurisdiction.
Conklin v. Plant, 34 Ill. App. 264;
Streety v. McCurdy, 104 Ala. 493;
McGhee v. Alexander, id. 116.
1 Dougherty v. Hughes, 165 Ill. 384;
2 Woerner on Adm. 500. Probate
Courts are frequently given large
equity powers, which naturally takes
away the necessity of a resort to an
equity court. Lynn v. Lynn, 160 Ill.
307.
* See Partnership.
3 Keigwin v. Comm., 115 Ill. 347;
Arthur v. School Dist., 164 Pa. St.
410.
4 Ante, p. 1066.
5 See Index.
6 Hunt, v. Hunt. 109 Mich. 399.
7This was the common-law rule in
equity. Am. Ass’n v. Eastern Ky.
Land Co., 68 Fed. Rep. 721.
8 Mott v. Danville Sem., 129 Ill. 403.
9 McRoberts v. Lockwood, 49 Ohio
St. 374. See Klever v. Seawall, 65
Fed. Rep. 393.
69
1088 LAW OF ACTIONS. [š 657.
point commissioners to view the land and report the practica-
bility of a partition, and designate a division, if practicable. If
the court decides finally that division is not practicable, the land
is sold and proceeds divided.
Bills of revivor are entertained when suits, which have pro-
gressed to some degree, are abated by the death of a party,
and it would be inequitable to compel a new suit. The suit is
revived against those who succeed to the rights of the deceased
in the subject of litigation." s'
Bills of Discovery.— All of the causes of action above men-
tioned have their appropriate bills which pray for the relief
which is desired in reference to the cause of action. There is
still another original bill which does not proceed upon the idea.
of administering any particular relief,” but is used as a mere
instrument of the court of equity to provide means for the win-
dication of a right in some other tribunal, namely, the bill of
discovery. Because of this distinction original bills are some-
times classed as bills of relief and bills of discovery,” although
all bills in equity are in a measure bills of discovery, in that
they pray for an answer.” Before the passage of the evidence
acts, which removed the disabilities of parties and interested
persons as witnesses, this bill was a very important instrument
of justice. It was always a bill auxiliary to some proceeding
in another court.”
The bill of discovery, properly so called, prays for no relief
except that the defendant make full and complete answer to
the questions propounded in the bill." When the defendant
has fully answered the case is at an end, for there is no decree
in such a case;" the whole object of the proceeding being
3 Wigram on Discovery, p. 3 et seq.
4 Any bill may join in it a bill of
1 If personalty, the administrator;
if realty, the heirs. Story, Eq. Pl.,
§ 354; Merwin, Eq., § 933.
2 Dixon v. Campbell, 3 Dana, 603;
Little v. Cooper, 10 N. J. Eq. 273; Mc-
Intyre v. Union College, 6 Paige, 240.
There is a tendency in modern times
to disregard this rule and to act upon
the other now controlling rule, that
equity having taken jurisdiction for
any purpose, even for mere discovery,
will afford complete relief. Smith v.
Smith, 92 Va. 696,
discovery, and is then called a bill
for discovery and relief. Wick v.
Dawson, 42 W. Va. 43.
5 Story, Eq. Jur., § 1483; Cont. Ins.
Co. v. Webb, 54 Ala. 688; Kerney v.
Jeffries, 48 Miss. 357; Thompson v.
Whitaker Iron Co., 41 W. Va. 574.
6 Answer under oath cannot be
waived. O’Hare Co. v. Daly, 161 Ill.
359.
7 Dixon v. Campbell, 3 Dana, 603,
§ 657.] LAW OF ACTIONS. . 1089
to obtain the information and then to use the answers as an
admission in other proceedings. The effect of the statutes re-
moving disabilities of witnesses has been to dispense almost
entirely with the necessity for bills of discovery, and pure bills
of this kind are very rare.” § -
Another cause which has lessened the necessity for resorting
to discovery is the power of law courts to allow an inspection
of books and papers, which occasioned the prayer for oyer in
common-law proceedings.”
The pleadings in chancery are materially affected by the dis-
use of bills of discovery; for it was only in these bills that there
was any difference in the mode of allegations in law and equity.
As to bills of relief, pure and simple, the mode of allegations
of facts is substantially the same as that of averments of facts
in actions at law; and these facts must, in both forms, be ad-
vanced in such a way that the defendant may put them in issue
for trial.” - - -
The Great Writs of Eguity.—The original process in equity
is, as we have seen, the subpoena commanding the defendant
to appear and answer. Next in order are writs which may be
issued before hearing. -
The great writs or instruments of equity by which it arrests
the acts of the defendant and preserves the property until the
court can determine the cause of relief are: -
First, the writ me eageat,” in which the court directs the sheriff
to arrest a defendant and to compel him to give bail not to go
out of the jurisdiction of the court.
1 The title of the first law in Illi-
nois (1861) to remove the disabilities
for discovery is removed. See Wild
v. Hobson, 2 Wes. & B. 108.
of parties and interested persons as
witnesses was entitled a law to dis-
pense with the bill of discovery. The
procedure in equity and the very ju-
risdiction, or at least the grounds of
the jurisdiction, have been greatly
affected and somewhat changed by
the recent acts doing away with the
incompetency of witnesses on the
grounds of interest or being parties;
e. g., when the defendant may be
Competent as a witness the reason
*See Glenney v. Stedwell, 64 N. Y.
120; Mulhern v. Kent Circuit Judge,
111 Mich. 528; Cont. Bank v. Heil-
man, 66 Fed. Rep. 184. -
3 Andrews' Steph. Pl. 159.
4 Van Santvoord's Pl, & Pr. 65;
|Mechanics' Bank v. Levy, 3 Paige.
Ch. 606; Hood v. Inman, 4 Johns.
Ch. 467.
5 See form of writ, Daniell’s Chan.
Prac. 2329. The old writ read, me
eaceat regno, that he go not out of the
realm.
1090 LAw of ACTIONs. [š 657.
Second, the preliminary injunction, which before hearing is
called an interlocutory, preliminary or temporary injunction,
and is always prohibitory and never mandatory. It is never
a matter of real right, but rests in the sound discretion of the
court." *
Third, the order for the appointment of a receiver. A re-
ceiver is a person appointed by the court to preserve prop-
erty or to conduct a business during the litigation.” He need
not be a disinterested person, but should be chosen with spe-
cial reference to his fitness for the particular duties. He is
from the time of appointment an officer of the court, and
a representative of the person or of the corporation whose
property he takes charge of.
IHe takes on a new status. Or-
dinarily he cannot be sued in this capacity without leave of
/
court.”
After hearing comes the decree,
This may direct:
which is explained below.
(1) A final or perpetual injunction, which may direct either
that defendant forever refrain from acting in certain specified
1 Equity Practice—Preliminary In-
junction.—On application for prelim-
inary injunction it is not proper to
decide the merits of the controversy,
especially where the case turns on
grave questions of law. All that the
judge should, as a general rule, re-
quire, is a case of probable right and
probable danger to that right with-
out the interposition of the court,
and the judge’s discretion should
then be regulated by the balance of
inconvenience or injury to the One
party or the other. The judge should,
in a case of probable right, grant the
provisional injunction where the re-
Ilief sought is essentially preventa-
tive, and a denial of the injunction
might in effect amount to a denial
of all relief. New Memphis Gas
Light Co. v. Memphis, 72 Fed. Rep.
‘952.
* “The appointment of a receiver
is not for the benefit of the plaintiff
merely, but for all other persons who
may establish rights in the cause.
Moneys in the hands of the receiver
are in custodia legis for whoever can
make a title to it.” Kerr on Receiv-
ers. “It is a discretionary power, ex-
ercised by a court of chancery only
for a more speedy getting in of a
party’s estate, and securing it for the
benefit of such persons as shall ap-
pear to be entitled, and does not at
all affect the right.” Skip v. How-
ard, 3 Atkins, 534. The appointment
of a receiver “is often called an equi-
table execution.” Story, Equity,
$829. The appointment of a receiver
does not operate to derange the pri-
ority of legal or equitable liens. The
money in his hands is in the custody
of the law for whoever can make
title to it, and when the party enti-
tled to the estate is ascertained the
receiver will be his receiver.” 2 Red-
field, Railways, 363.
3 Central Trust Co. v. Railway Co.,
59 Fed. Rep. 523, and discussion.
§ 658.] LAW OF ACTIONS. 1091.
ways (a prohibitory injunction);' or that he do something (a
mandatory injunction). The latter is often applied to the
abatement of nuisances. It is used not only to protect private
property rights, but to protect public political rights,” public
rights in general”—in fact, it is the great writ to maintain
the status quo of that over which the court assumes jurisdic-
tion.
(2) The Writ of Assistance or Restitution.—Where the de-
fendant has refused compliance with the decree of the court,
the court will, after having inquired into the matter, issue a
writ directing the sheriff to assist the complainant and to put
him in possession. It is equitable replewin or ejectment which
this writ accomplishes."
(3) The writ of execution was not one of the ancient processes
of the court, but made its appearance in cases of money de-
crees in analogy to the execution (or elegit) of the law courts.
Attachment for contempt is a process which for the purpose
now under contemplation seeks to compel the actual perform-
ance of the decree by fine or imprisonment of the defend-
ant. -
SEC. 658. Legal Actions are of two great classes, differing
from each other in the character of the parties and the nature
of the subject-matter. They are usually classed as ordinary
actions and extraordinary actions. The former are the pri-
vate suits between persons of whatever rank, residence or ca-
pacity concerning private property or personal rights, and are
the actions commonly treated in books on pleading and prac-
tice.” -
1. As in case of a continuing tres-
pass. Wheelock v. Noonan, 108 N. Y.
179. An injunction may be used as
a great prerogative writ to protect
the people as to matters publici juris
(of public right). State v. Cunning-
ham, 81 Wis. 440. An injunction is
not an appropriate remedy by the
state to restrain corporations from
abusing their franchises or exercis-
ing powers in excess of their charter,
except where the matter involved is
a duty owed to the state rather than
to Stockholders, or the acts amount
to a public nuisance. Attorney-Gen-
eral v. Utica. Ins. Co., 2 Johns. Ch.
370; People v. A. & V. Ry. Co., 24 N.
Y. 261; Attorney-General v. Jamaica,
Pond Aqueduct, 133 Mass. 361. Cf.
Attorney-General v. Railroad Co., .
35 Wis. 425, criticised in High, Inj.
(2d ed.), p. 19.
2 State v. Cunningham, 81 Wis. 440.
3 Craig v. People, 47 Ill. 487.
4 Boone v. Chiles, 10 Pet. 189; Smith
v. Brittenham, 109 Ill. 540.
5 See Andrews' Steph. Pl., p. 60 et
Seq,
1092 LAW OF ACTIONS. [$658.
oUTLINE OF THE FORMs of CIVIL ACTIONs.
* ſ 1. In volving
possession J Forçible entry and detainer.
and dam- l Equitable ejectment in Pennsylvania.”
- ages.
Re a 1 and .
mixed. 2. Involving ſ (1) Waste.
possession, (2) Writ of entry.
title and (3) Trespass to try title.
(4) Writ of dower.
L (5) Ejectment.
ſ ſ (1) Debt. } a. In the debet.
d. In the detimet.
1. Actions ea: (2) Covenant.
contract v. (3) Account.
damages.
General.
(4) Asswºmpsit. J a.
) MO ! b. Special.
PR IV A. T E.
A DV E R-
SARY AC-
TIONS. f. (2) Trespass. |
*
ſ (1) Detinue.
. TVii et Cºrmis. -w
. De bomis asportatis.
. Qware clawsum fregit.
. Trover.
Ilibel.
. Slander.
. Malicious prosecution.
Personal.1: . :
.
2. Actions eac
delicto, (3) Trespass on All actions for the re-
the case. dress of a personal
W r Ong Occasioned
by non-feasance or
misfeasance where
direct force is not
the ground of the
action. Ante, p. 1049.
ke
& a. In cepit.
(4) Replevin. { b. In definet.
k. --
ſ Mandamus.
Quo warranto.
PUBLIC º -
JIVIL - Scire facias.
Prohibition.j:
ACTIONS.
Certiorari.j:
Habeas corpus.f
Partition, under statutes.
S P E CIA L | Condemnation proceedings, under eminent domain.
PROCEED- 3 Special assessment proceedings for public improvements.
ING's Probate proceedings.
U Proceedings to protect persons non compos mentis.
M ſ The jurisdiction in admiralty is exclusively in the federal courts, and is in form
A RITIM E a proceeding against the vessel, but it is to all intents and purposes adver-
CAUSES. Sary and not eac parte.|
* Gen. Am. T. & T. Co. v. Shallcross, 147 Pa. St. 485. -
+ This outline is taken from the author's edition of Stephen (Andrews' Steph. Pl., p. 60),
and each action and the procedure and pleading therein are there fully explained, with ref-
erence to both code and common-law requirements.
f These each have a function as an appellate process as well as an original Suit.
|Desty's Fed. Pro. (9th ed.), sec. 2, p. 27 et seq.
§ 658.] LAW OF ACTIONS. 1093
Jºublic or ea traordinary remedies, so called, involve as the
subjects of the suits matters public in their nature.” The sub-
jects of these suits, though they may be owned and controlled
'by private persons, are of such public interest that the people
have the right to demand the proper use and management of
them;” and so such suits, although generally instigated and
urged by private persons as relators, may proceed without a
relator's complaint, simply on the motion of the people's law
officer. In every case they proceed in the name of the people.
In other words, they are civil suits by the people to protect
matters of public interest. -
There are five of these great writs: Mandamus, prohibition,
quo warranto, habeas corpus, and certiorari. The beginner sees
in these names a suggestion of their nature. A mandamus
commands that something be done; a prohibition forbids some
act; a quo warranto questions the right or authority of some
act; a habeas corpus demands the body or person of some one
imprisoned; a certiorari, the use of which is not so easily per-
ceived, calls for the record of a lower court to make certain,
by its examination, certain facts in regard to the suit.*
Mandamus was originally a great prerogative writ,” and was
regarded as criminal in form. It is now a great public writ,
civil in form, and governed by the rules of civil pleading, prac-
tice and evidence." It lies to compel the performance of a
ministerial duty by public officers,' or the performance of acts
required by public laws in reference to a subject which, being
1 They should not with us be des-
ignated or regarded as extraordinary
remedies. It is regarded in the fed-
eral courts especially as an action
rather than a prerogative writ. Ken-
tucky v. Denison, 24 How. 66.
2 The student should study State
ex rel. v. Cunningham, 81 Wis. 440;
Id., 83 Wis, 90.
8 Bassett v. Atwater, 65 Conn. 355.
4 These suits may be appellate in
nature and form, or they may be
original suits, that is, the first resort
to the judicial branch of the govern-
ment.
5 See 3 Cooley's Blk. (4th ed.) 110,
note; also, Bassett v. Atwater, 65
Conn. 355. But it does not now issue
from or by any prerogative power.
It is nothing more than the ordi-
nary process of a court of justice, to
which every one is entitled where it
is the appropriate process for assert-
ing the right he claims. Kentucky
v. Denison, 24 How. 66.
6 People v. Crabb, 156 Ill. 155.
7 Marbury v. Madison, 1 Cranch,
152. It does not lie to direct how a
matter, discretionary in its nature,
shall be done, but only to do that
which must be done. Hudson v.
Parker, 156 U. S. 277; Laubach v.
Omera, 107 Mich. 29.
1094. I, AW OF ACTIONS. [$ 658.
exercised under a public franchise, is within the control of the
public." It is the only process to compel the payment of money
by public corporations.”
Prohibition is a writ appropriate to the use of a superior
judicial tribunal for the purpose of restraining an inferior ju-
dicial officer from proceeding without jurisdiction or in excess.
of it. It may be used in aid of appellate jurisdiction, or as an
Original process to prevent injury under a mistaken assump-
tion of power.” It may lie against a legislative body which
is about to invade the bounds of the judicial and thereby vio-
late the obligation of a contract.”
Quo warranto is a proceeding to question the exercise of
official power or authority, or of rights and privileges which
can only be exercised by virtue of a public authorization, i. e.,
a franchise.” It has been held by the same tribunal to be a
civil suit," and again held to be penal in nature."
It is the great remedy by which corporations are kept from
usurping power, and individuals restrained from assuming cor-
porate or official powers.”
The case comes to the court by petition,” and the judgment,
if against the usurpation, is a judgment of Ouster.
Habeas corpus is the great writ which by Magna Carta, and
the bill of rights in all our constitutions, must be issued by all
1 E. g., the officers of a private cor-
poration pass by-laws by direction
of law; they must be obeyed as a
law, and mandamus lies to compel
Obedience. Bassett v. Atwater, 65
Conn. 355; Rosenfield v. Einstein, 17
Vroom, 481.
2 Beach, Pub. Corp., § 1573 et seq.;
People v. Boards, 139 N. Y. 524.
3 In re Chetwood, 165 U. S. 461;
Arnold v. Shields, 5 Dana, 28; People
ex rel. v. Horton, 169 ITl. 201.
4 State v. Young, 29 Minn. 523.
53 Cooley's Blk, (4th ed.) 263; Re-
gents v. Williams, 9 Gill & J. 365;
High, Ex. Rem., § 591 et seq.; Attor-
ney-General v. Blossom, 1 Wis. 317.
6 People v. Holtz, 92 Ill. 426. Con-
tra, 68 Ill. 256; 3 Blk. Com. 262. See
High, Ex. Rem., § 600."
7 Diversey v. Smith, 103 Ill. 378.
8 See Corporation; People v. P. P.
C. Co., 175 Ill. 125. Where the cor-
poration is a corporation de jure, it
was formerly held that a usurpation
of power was properly questioned by
quo warranto, but that the forfeiture.
or validity of the charter was more
properly questioned by Scire facias.
Regents v. Williams, 9 Gill & J. 367;
31 Am. Dec. 72.
9The court should examine the pe--
tition as to the relation of the relator
to the subject, his motives and the
consequences of granting the writ.
State v. Tolan, 33 N. J. L. 198. Gen-
erally a private person cannot act as
relator to question the existence of a
corporation. People v. N. Chi. Ry.
Co., 88 Ill, 544. See High, Ex. Rem.,
§ 733.
§ 659.] LAW OF ACTIONS. 1095.
courts having jurisdiction, at the petition of any person im-
prisoned," to test the legality of the restraint.” Even if the
proceedings under which the prisoner is held are void, he will
not be discharged, but the court may remand for further trial.”
Certiorari is a well known common-law writ to test the valid-
ity of official action, judicial or quisi-judicial in its nature,”
Whether it be exercised by a court or by a special tribunal.”
Whether the proceedings are appellate inform or not, the trial
is by the record; and the only question is as to the sufficiency
of the record" to uphold the judgment. It is therefore exam-
ined to see whether there was jurisdiction, and whether the
proceedings were according to the forms of law." The writ.
lay at common law to remove a pending suit;” but this is not
now the general rule. -
SEC. 659. The Judicial Establishment of the United States.—
The lawyer, before he holds himself out as qualified to advise and
protect the rights and interests of clients, ought to be familiar
with the different judicial tribunals to which he may apply for
relief and redress, and to have sufficient understanding of their
jurisdiction that he may readily advise which one is the most
advantageous tribunal in which to bring his action. Merely
to understand the legal rights of the parties to a transaction is
not enough. Circumstances often render it imperative that a
jurisdiction which does not naturally suggest itself to the un-
informed shall be chosen; and in many cases the party has his
choice or election of forums, one of which is likely to be pref-
erable to the other for his purposes.
1 Ex parte Milligan, 4 Wall. 2. It ers v. Griffin, 134 Ill. 330; Gilbert v.
is the great case on this subject.
*In extradition proceedings the
Question arises, Is the prisoner
Charged with a crime according to
the laws of the country asking for
him (People v. Brady, 56 N. Y. 184;
Roberts v. Reilly, 116 U. S. 80), and is
there any evidence tending to prove
his guilt 2 Bryant v. United States,
167 U. S. 104. -
3 Ex parte Gibson, 31 Cal. 621. For
power of federal courts, see In re
Burris, 136 U. S. 586.
4 State v. Dodge, 56 Wis. 79; Mayor
v. Dean, 62 Ill. App. 41; Commission-
Board, 11 Utah, 378; Farmington Ry.
Co. v. Commissioners, 112 Mass. 206.
5 Miller v. Trustees of Schools, 88 Ill.
26. See People v. Cunningham, 81 Wis.
440; People v. Town Board, 90 Hun,
488; In re Fitch, 147 N. Y. 334.
6 Blair v. Sennott, 134 Ill. 78.
7 Blair v. Sennott, 134 Ill. 78. At
Common law it was not a proper
remedy for mere errors on the trial.
Forbes Co. v. Winters, 107 Mich. 116.
It is used as a writ to supply record
on appeal and writ of error. Strohn),
v. People, 160 Ill. 586.
8 Lynd v. Noble, 20 John, 80.
1096 IAW OF ACTIONS. [$659.
ſ 1. Supreme court of the United States.
ſ
The Courts.
[“The judicial
OW'er Shall
. Circuit court of appeals.
e vested in . Circuit Courts.
One supreme tº dº º
C O u r t. and . District courts.
1.
2
3
4
Such inferior 5
6
7
8
9.
-:
COUTtS aS the . United States commissioners.
COngreSS may
from time to
time ordain
and est a b-
lish.” Art.
IJI, § 1, U. S.
Const.] l
. Territorial Courts.
. Courts of District of Columbia.
. Court of claims.
Court of private claims.
ſ 1. Depending on the nature of the cause of action. - -
1N AT I on A L Cases arising under this constitution, the laws of
JUD the United States, and treaties made or which shall
UDICIARY, e •
be made under their authority.
To all cases of admiralty and maritime jurisdic-
tion.
Orbit of Juris- To all cases between citizens of the same state
diction.* claiming lands whder grants of different states.
[“The judicial
power shall ^ º -
extend to all { 2. Depending on the character of the parties.
cases in law To all cases affecting ambassadors, other public
and equity.” e -
Art. III $ 2, ministers and consuls.
TJ S. Const.] TO COntroversies to which the United States Shall
be a party.
TO COntroversies between two or more States.
Between a state and a citizen of another state.
Between citizens of different states.
Between a state, or the citizens thereof, and
* | foreign states, citizens or subjects.
*This classification is approved in California v. So. Pac. Ry. Co., 157 U. S. 229.
The national and the state courts are not distinct and foreign
to each other, but are interdependent, co-operating systems,
and together constitute one vast machine of justice, planned
and operated that a remedy may be found for every wrong,
and that protection is afforded the weakest against the most
powerful, without regard to residence or nationality."
With this interdependency of the two systems in view, a
very brief outline of the different courts is presented.
The national constitution provides that the judicial power
of the United States shall be vested in One supreme court and
in such inferior courts as the congress may from time to time
ordain and establish.”
The judicial power shall extend:
To all cases in law and equity arising under this constitu-
1 Claflin v. Houseman, 93 U. S. 130, the subject-matter may control, and
Cases do not arbitrarily and always there may be a choice of forums.
go to a particular court. The char- 2 Art. III. See California v. So. Pac.
acter of the parties or the nature of Ry. Co., 157 U. S. 252.
§ 659.]
1097
IAW OF ACTIONS.
tion, the laws of the United States, and treaties made, or which
shall be made, under their authority."
To all cases affecting ambassadors, other public ministers
and consuls.
To all cases of admiralty and maritime jurisdiction.”
To controversies to which the United States shall be a party.
To controversies between two or more states.
Between a state and a citizen of another state.”
Between citizens of different states.
Between citizens of the same state claiming lands under
grants of different states, and between a state or the citizens
thereof and foreign states, citizens or subjects.
Jurisdiction of Supreme Court.— In all cases affecting am-
bassadors, other public ministers and consuls, and those in
which a state shall be a party, the supreme court shall have
original jurisdiction.*
In all the other cases before mentioned the supreme court
shall have appellate jurisdiction, both as to law and fact, with
such exceptions and under such regulations as the congress
shall make.”
Jury Trial,—The trial of all crimes, except in cases of im-
peachment, and all civil trials where the matter in controversy
shall exceed in value $20, shall be by jury."
1 This is the broad grant of judicial
power. It cannot be enlarged or di-
minished except by a constitutional
enactment. The eleventh amend-
ment is an example.
2This is a peculiar grant of juris-
diction, described by reference to a
well-established source of jurisdic-
tion. It differs in that particular
from all the other grants. The ad-
miralty and maritime jurisdiction
was not a common-law jurisdiction,
but one based on the law of nations
as stated in the civil law; and so the
maritime customs and usages, as rec-
ognized by the leading mercantile
nations, become a standard of juris-
diction and a guide of procedure on
the subject. Hence the appropriate-
ness of Conferring exclusive jurisdic-
tion on the national court.
See The
Glide, 167 U. S. 606. Where a plank
was negligently handled on a dock,
injuring a man working in the hold
of a ship, the jurisdiction was held
to be in the admiralty court and not
in the state court. Hermann v. Port
B. M. Co., 69 Fed. Rep. 646.
8 But a state cannot be sued except
by its own consent. Amendment to
Const., art. II. It was held otherwise
before this amendment. Chisholm
v. Georgia, 2 Dall. 419. See Hahn v.
Louisiana, 134 U. S. 1.
4 Art. III, § 2; Börs v. Preston, 111
|U. S. 252. This section does not Con-
fer a right to sue a state, but merely
gives jurisdiction where rights exist.
California v. So. Pac. Ry. Co., 157
U. S. 229.
5 Id,
* Amendment to Const., art. VIII.
1098 LAW OF ACTIONS. [$ 659.
Place of Trial.—Such trials shall be held in the state where
the said crimes shall have been committed; but when not com-
mitted within any state, the trial shall be at such place or places
as the congress may by law have directed.
The outline shows the courts as they exist, all of which,
except the supreme court, have been created by acts of con-
gress. - - -
The constitution does not even prescribe the number of
judges, their term of service, or qualification. But the choice
or selection is in the president, with the advice and consent of
the senate. -
The orbit of jurisdiction is, however, carefully marked out'
by the constitution, and necessarily so, in order that congress
could not encroach upon the jurisdiction of the states by confer-
ring upon the federal courts jurisdiction which naturally be-
longed to the state courts.
Source of Jurisdiction.—Federal courts have no common-law
jurisdiction, the common law having no force or vigor in refer-
ence to the national constitution and governmental establish-
ments, excepting only its utility as a guide to procedure, and
criteria of construction,” and by express provisions of congress,
that the procedure of the courts of equity shall be the same
as the procedure of the high court of chancery of England, makes
the English law in that respect a guide.”
Where the constitution confers original jurisdiction over a
class of cases the court proceeds according to the course of the
common law.”
The constitution does not confer jurisdiction on any court
1 This is the Orbit of the whole de-
partment, but not the parceling
States v. Worrell, 2 Dall. 384; Ten-
nessee v. Davis, 100 U. S. 280.
of jurisdiction between the courts,
which are created by congress. This
is left to congress, and the law is to
be sought in the statutes and ju-
dicial construction of them. Cali-
fornia v. So. Pac. Ry. Co., 157 U. S.
232.
2 California v. So. Pac. Ry. Co., 157
U. S. 229.
3 See In re Burris, 136 U. S. 586,
and note in official report; United
4 Id. The equity jurisdiction of the
courts of the United States is inde-
pendent of the local law of any state,
and is the same in nature and extent,
as the equity jurisdiction of England
from which it is derived, and it
is no objection to this jurisdiction
that there is a remedy under the
local law. Gorden v. Hobart, 2 Sum-
ner C. C. 401; Dodge v. Woolsey, 18.
How. 331, 347.
§ 659.] - LAW OF ACTIONS. - 1099
except the court created by it, viz., the supreme court. All
other courts can act only by authorization of congress."
It follows then that these courts are within the reason of the
rule which applies to courts of special and limited jurisdiction,
and the record must show jurisdiction or the judgment may be
disregarded collaterally.” -
Original jurisdiction, i.e., the right to take first cognizance
of a case, is conferred by the constitution on the supreme court
as to several specific cases. This cannot be taken away nor
enlarged by congress.” But congress may give original juris-
diction of the same cases to the courts created by it."
By reference to the outline it will be seen that there are two
classes of cases within the jurisdiction of the federal courts.
As to the first class, the amount in controversy or the character
of the parties does not affect the jurisdiction, because the sub-
ject-matter is such as to be peculiarly a national concern; that
is, the cause of action arises under national laws, or (2) under
admiralty, or (3) is based upon a national grant, and because
of this such a suit is said to involve a federal question.”
As to the second class of cases, the character of the parties
is an essential requirement, although congress has limited the
jurisdiction of the courts in some, but not all, instances by the
value of the matter in controversy; while as to others, partic-
ularly the United States, the value of the subject-matter is im-
material.”
A Federal Question.— This is one arising under the constitu-
tion, the treaties, or the grants of the United States, or a mat-
ter peculiarly within the cognizance of the nation, although
until it acts the states may have a right to act in the same
matter."
Original Jurisdiction.— The fact that a federal question is
involved — that is, that one party bases his right or the other
his defense on some national law or authority — will not in all
1 Turner v. Bank, 4 Dall. 8; In re 4 Börs v. Preston, supra.
JBarry, 42 Fed. R. 113. See sub., In re 5 Byers v. McAuley, 149 U. S. 608.
Burris, 136 U. S. 597, n.; Sewing Ma- 6 United States v. Sayward, 160
Chine Cases, 18 Wall. 577. U. S. 493; Shiras, Eq. Prac. 14, 15.
*Turner v. Bank, supra; Railway 7 E. g., admiralty and patent mat-
Co. v. Gray, 38 Mich. 468; Börs v. ters, insolvency cases until a peti-
Preston, 111 U. S. 252. tion in bankruptcy is filed, etc.
3 Marbury v. Madison, 1 Cranch, 137.
1100 Law of ACTIONs. [$ 660.
cases give the federal courts original jurisdiction. In order to
confer such jurisdiction the question must fall within some one
or more of the provisions of the act of congress or the consti-
tution.
Appellate jurisdiction, on the other hand, depends upon the
presence of a federal question," and the further fact that a de-
cision has been made adverse to the party appealing,” and that
the court making the decision is the highest court of the state
having jurisdiction of the subject.”
The character of parties as affecting the jurisdiction has ref-
erence to the real parties interested." And yet the federal
courts have been quite liberal in construction. In order to af-
ford a remedy to an injured party, they have allowed officers
of the government, acting on behalf thereof, to be sued where
the government could not have been subjected to a suit.” Di-
versity of citizenship is a ground of jurisdiction independently
of the character of the parties or nature of the action. The
diversity must be of such a character that all on one side are
diverse in citizenship from all on the opposite side."
Parties cannot waive the objection and by consent confer
jurisdiction, nor can they by a colorable or fraudulent transfer
accomplish the object."
SEC. 660. State Judicial Establishment.—Each state has a
court of ultimate appellate jurisdiction, termed the supreme
court or court of appeals.
Most of the states have established an intermediate appel-
late tribunal, whose decisions are final only as to certain classes
of cases, including cases involving amounts not large enough
I See Judiciary Act, U.S. Rev. Stat.
2 Murdock v. Memphis, 20 Wall. 590.
3 Curtis, Jurisd. Of U. S. Cts, 27;
Miller v. Joseph, 17 Wall. 655.
4The person holding the legal title
is the real party, although another
may be beneficially interested. Coal
Co. v. Blatchford, 11 Wall. 172; Am.
Bible Soc. v. Price, 110 U. S. 61.
5 Infringement of patent by fed-
eral officers using the invention for
the government. Belknap v. Schild,
161 U. S. 10.
* But in the case of a suit by a
stockholder of a corporation in its
behalf against its officers, where
there are many stockholders, resort
may be had to the federal court by
a citizen of one state, even though
the corporation could not have sued,
and although there were many share-
holders citizens of the same state
with the officers. Dodge v. Woolsey,
18 How. 331; Muller v. Dows, 94 U. S.
444.
7 Lehigh M. & M. Co. v. Kelley, 160
U. S. 327. The objection may be
raised by plea in abatement. Id.
§ 660.] LAW OF ACTIONS. 110].
to require the action of the supreme tribunal. These courts are
not given the authority to entertain jurisdiction over all classes
of cases."
In all cases the highest courts have original jurisdiction as
to some matters specified in the constitution, and a jurisdiction
which is to all appearances original, but which is in reality an
appellate jurisdiction, under which they issue process of pro-
hibition, mandamus or certiorari and habeas corpus,” and a direct
appellate jurisdiction exercised by certiorari, appeal and writ
of error.
Next to these appellate tribunals is a system of trial courts
established in every county. This system constitutes the great
common pleas court of the land. These courts are called the
district or circuit courts, and have jurisdiction of all the ordi-
nary forms of action in personam and in rem in law and equity.
In counties which have a large volume of business, the courts
often consist of many judges. -
Terms of Court.—The courts, while always open for the com-
mencement of law-suits and for the transaction of ministerial
business, do not sit continuously, but at fixed and stated times
called in our law “terms.” It is important to understand the
technical signification of a term of court and certain special
rules which relate thereto.”
J. g., for many purposes all acts taken during the term date
from the first day of the term, so that changes or even death
may not affect an act actually transpiring later than the hap-
pening of the event. *
Again, judges are authorized to transact certain business in
vacation, and the existence of vacation depends upon the ad-
journment of the court.”
‘. . . . *- : *
1 In Illinois, appeals from the trial
tribunals in revenue cases, and in
cases involving a freehold or fran-
chise, the validity of a statute, or
construction of the constitution, go
directly to the Supreme court.
* As to Supervising control of these
courts, see State v. Johnson (Wis.), 79
N. W. Rep. 1081.
* Mulhern v. Kent Circuit Judge,
111 Mich. 528.
* The distinction must be made be-
tween the powers of the court and
the powers of its judge. There can
be no court except during term time.
The judge may by the customs of the
common law or by statute exercise
certain powers, e. g., grant and dis-
solve injunctions. U. S. Life Ins. Co.
v. Shattuck, 159 Ill. 610; Hobart v.
Hobart, 45 Iowa, 501; Dunn v. State.
2 Ark. 229. The clerk may take con-
fession of judgment in vacation. The
masters in chancery may recommend
an injunction in vacation.
T102 IAW OF ACTIONS. [$ 660.
County Courts.- Besides these tribunals it has been found
necessary to create a court with a jurisdiction which relates to
the fiscal affairs of the community and to the collection of the
revenue, and in which it is usual to institute proceedings for
the condemnation of property, the imposition of special assess-
ments, and matters of like municipal concern. Insolvency mat-
ters are quite generally taken in this court, but there is no
implied limitation on the power of the legislature as to what
jurisdiction shall be delegated to any particular court."
These are generally termed county courts, and it is not un-
usual to invest them with concurrent jurisdiction in civil and
Quasi-criminal suits and penal actions as to matters limited in
amount, or less important than are committed to the court of
Common pleas. s
Probate or Surrogate Courts.” – A large part of the judicial
business of the country consists in the administration of estates,
testate and intestate. Indeed, it has been said that the title to
all real property will be found to trace through the probate
court on an average once in thirty years. These courts are
variously termed probate, surrogate or orphans’ courts.
It will be seen that in most of our states the lines which sep-
arate the courts of exchequer, the courts of common pleas and
the courts of king’s bench are recognized, not because of any
obligation so to do, but because of the natural way in which
the subject-matter within the jurisdiction of the courts divides
itself; and because the further jurisdiction, anciently committed
to the spiritual courts, which has reference to the personal prop-
erty of an intestate, coalesces with the jurisdiction over all the
intestate's interest in land, and because the idea that the per-
I Sayler v. Simpson, 45 Ohio St. 141.
2 There is no principle or provision
which requires that each of these
jurisdictions should be lodged in dif-
ferent tribunals, and they are often
united as in Illinois. The county
court in many counties unites the
jurisdiction over fiscal matters, etc.,
with the probate jurisdiction and
jurisdiction over conservation of lu-
natics, guardianship of infants, etc.;
while in large counties there are sepa-
rate probate and county courts.
The equitable jurisdiction of the
probate courts is generally quite ex-
tensive, not as an original source of
jurisdiction, but as a means of more
effectually exercising the proper ju-
risdiction of the court and doing com-
plete justice in a single proceeding.
Sayler v. Simpson, 45 Ohio St. 141.
Clouds may be removed in Order to
facilitate the sale of land. Newell v.
Montgomery, 129 Ill. 58. For other
examples, see Willard's Appeal, 65 Pa.
St. 265; Carter's Appeal, 59 Conn. 587.
§ 660.] g IAW OF ACTIONS. 1103
sonal goods of the testate should go to the benefit of his soul
has no place in our modern law. . -
Justice Courts.- Besides these courts of greater dignity there
are established in every township one or more petty or magis-
trate courts, usually called justice courts, uniting in one mag-
istrate the functions of a court proper, and of an officer for
the preservation of the public peace. In these courts small of
fenders are apprehended and punished, and graver offenses
are examined into, and those accused apprehended and com-
mitted for the action of the grand jury or the higher tribunal
having jurisdiction to hear, award judgments and punish the
Offender.
Municipal Courts.-In ancient times a jurisdiction was given
to the lord of the manor to hold a manorial court; so also a spe-
cial jurisdiction was given to the counties palatine and certain
of the larger cities.
In the larger cities municipal courts are frequently erected
having civil and quasi-criminal jurisdiction, limited in amount
and as to subjects, and also a special jurisdiction over offenses
connected with the municipality. They are created to relieve
the congestion of business which might otherwise prove an in-
convenience to the general administration of justice, and are
variously designated as the mayor's or recorder's court, or court
of the city, etc.
Source of Jurisdiction.— Inasmuch as all of these state courts
exist by virtue of the sanctioning power of the people, it is ob-
vious that their jurisdiction must depend upon the constitution
and statutory provisions. But inasmuch as most of the states
derive a large part of their law and procedure from England,
it is the general rule to provide for a jurisdiction similar to that
of the courts of the common law; and a constitutional provis-
ion, adopting the common law as it stood at some designated
time, has the effect of recognizing the ancient causes of action,
forms of action and provisions in reference to due process of
law and personal liberty. Thus is preserved a general juris-
diction and procedure according to the course of the common
law, excepting as modified by statutes and rules of court pro-
vided under the inherent power of the courts to regulate their
practice.
70
1104. LAW OF ACTIONS. [š 661.
SEC. 661. Parties to Suits and Actions.— The universal rule
in all courts is that the real party in interest, if not under dis-
ability,' shall bring the suit;” that is, the person whose legal
right is infringed, injured, or who owns the cause of action,
or, as it might be put, in whom vests the right of action.”
A cause of action is either a chose in action or a mere per-
sonal tort; in either case such a cause of action was not, by
the common law, assignable, except in the case of the special
classes of contracts called negotiable.”
Privies may sue and be sued though they were not known
to have been such and did not know of their rights.”
Joining of Parties.—It frequently happens that more than
One person has a right or interest in the matter in which the
injury is sustained. This interest may be strictly a joint in-
terest, or it may be a common interest, not technically a joint.
One, the latter denoting the idea of joint ownership in the sub-
ject injured."
1 These sue in name of guardian,
conservator or next friend. An-
drews’ Steph. Pl. 34. At common
law a married woman could not sue
in a law court, and in equity only by
a ſnext friend. Jordan v. Gray, 19
Ala. 618; Garlick v. Strong, 3 Paige
Ch. 440. The married woman acts
remove this disability. Richmond
Ry. Co. v. Bowles, 92 Va. 738.
* Where a contract is made by an
agent without disclosing his princi-
pal, the principal may sue on it. Mc-
Connell v. East Pt. L. Co., 100 Ga.
129; Tutt v. Brown, 5 Litt. 1; 15 Am.
Dec. 33. In such cases the opposite
party may elect to sue either, but
Cannot sue both. Amte, pp. 814–15.
3 Andrews’ Steph. Pl. 30 et seq.;
Pomeroy, Code Rem. 168; Hendrick
v. Lindley, 93 U. S. 143.
Eacception.— An agent may be sued
where the principal is beyond the ju-
risdiction. Osborn v. Bank, 9 Wheat.
739; McArthur v. Scott, 113 U. S. 540.
On insurance policies the beneficiary
generally should sue. Mut. Ins. Co.
v. Stibbe, 46 Md. 302; Mass. M. L. Co.
v. Kellogg, 82 Ill. 614. The trustee
in an active trust is the real party in
interest. Shipp v. Williams, 62 Fed.
Rep. 4; Platt v. Iron Ex. Bank, 83.
Wis. 359. So an assignee. Harris v.
Cornell, 80 Ill. 55.
* The right to recover for a mere
personal tort is not assignable. Ack-
ley v. N. C. C. Ry. Co., 171 Ill. 100;
Linton v. Hurley, 104 Mass. 355;
Noonan v. Orton, 34 Wis. 259; 17 L.
R. A. 441. But a claim connected
with an injury to property or a
breach of contract may be assigned
in such a way as to allow a suit by
the assignee. Ante, $618; Cincin-
nati v. Hofer, 49 Ohio St. 60; McKee.
v. Judd, 2 Kern. 622; Bushnell v.
Eemnedy, 9 Wall. 387; Sloan v. Will-
iams, 138 Ill. 46.
* Ante, § 612. Where one pur-
Chases property of another and ex-
pressly or impliedly agrees to answer
for the obligations of the prior owner
in reference to it, there is sufficient,
privity to sustain a suit. Atl. Nat.
Bank v. Harris, 118 Mass. 147.
6 See Andrews' Steph. Pl., p. 36 et,
seq.; and case of Hannay v. Smurth-
wait, 69 L. T. Rep. 677, set out fully
in Andrews' Steph. Pl, Appendix,
p. 445.
§ 661.]
1105
IAW OF ACTIONS.
All parties jointly interested in the subject-matter 7must be
joined as plaintiffs."
All persons having a common interest in the subject-matter
and the relief may join, but need not all be joined.”
In legal actions a necessary plaintiff may be joined without
his consent and against his protest.”
In equitable actions a non-consenting necessary party may be
made a defendant.”
The substantive law determines what are joint rights or
joint obligations, and what are several, and when they are joint
and several.
In cases of ownership and contractual relation, the nature
of the estate, interest or the provisions of the contract control.
In cases ea delicto (torts) the rules are more simple.
All
persons having a joint interest may join and may be required
to join, but non-joinder can be required only by plea in abate-
ment. Persons having separate interests and separate damage
cannot join, though injured by the same act. Persons having
separate interests but a common damage have the election to
join or not.”
A misjoinder is the uniting in one suit of persons not entitled
to sue, or the uniting as defendants persons not jointly liable.
We have seen that joint rights or obligations arising ea con-
tractu or from ownership are entire things, and are not sever-
able at the pleasure of any one, so that the rule of joinder is
but the result of the nature of the right and obligation and
not a matter of form.
1 Andrews' Steph. Pl., § 14. In case
of voluntary societies the strict rule
would require all to join, but a prac-
tice is sanctioned of allowing a com-
mittee to sue on behalf of all. Fitz-
patrick v. Rutten, 160 Ill. 282. See
ante, § 472.
2 Id.
3 Andrews' Steph. Pl. § 19. This is
the general rule. Fain v. Gathright,
5 Ga. 7; Sumner v. Sleeth, 87 Iil. 500.
* The codes in some states pro-
vide that One not consenting may
be made a defendant. This is on the
theory that, the form of procedure
being equitable, it is not material
On which side one appears; but in
truth the new permission does not
abrogate the old right, and in many
cases the practice would work an
absurdity. In Hargrave v. Lewis, 6
Ga. 207, it is said that “it is a legal
absurdity for a man to be a defend-
ant in a case seeking a decree in his
favor.” The codes are just uncer-
tain enough to allow the courts to
be guided by the good sense of the
ancient rules. See remarks of Com
stock, J., in N. Y. & N. H. Ry. Co.
v. Schuyler, 17 N. Y. 592; Andrews’
Steph. Pl. 40.
5 Andrews' Steph. Pl., p. 49 et seq.
and p. 445; Hannay v. Smurthwait,
69 L. T. Rep. 677. :
1106 LAW OF ACTIONS. [$ 661.
A nonjoinder is the omission of a necessary party.
A violation of these rules as to joinder may be fatal to the
cause at any stage. -
Parties in Equity.— The courts of equity proceed upon a
policy not applicable to a suit at law, in this: that, taking juris-
diction, the court, having regard for the public as well as the
parties, insists that the whole controversy shall be settled in
One suit. But a joint action cannot be maintained upon sev-
eral distinct matters, even though they arise out of the same
transaction, unless the complainants have at least a common
interest."
The first rule, then, is that all persons interested in the sub-
ject-matter in such a way that the decree will affect their in-
terest must be made parties to the bill.” -
In the application of this policy and this rule, parties are re-
garded in the light of their substantial interest as, 1st, merely
formal parties; 2d, parties interested in the subject, but not
necessarily interested in the controversy or relief prayed; and
3d, persons whose rights are necessarily affected by the decree,
or who bear such a relation to some party that it would be in-
equitable to proceed without him.”
Jºcception.—Where the parties on one side are very numer-
ous, or beyond the jurisdiction of the court, they need not be
joined."
The rule only applies to those interested in the subject of the
suit; that is, those interested in the cause of action.”
1 Maxwell, Code Pl. 30.
2 All persons materially interested
are necessary parties to a bill in
chancery. Want of proper parties
is good cause of demurrer, or may be
assigned for error upon appeal. John-
Son v. Rankin, 2 Bibb, 184; Par-
berry's Heirs v. Goram, 3 Bibb, 107.
Unborn persons who may have ex-
ecutory interests in remainder or
reversion, etc., may be affected by a
decree and may be proper parties.
JLoring v. Hildreth, 170 Mass. 328.
3 California v. Southern Pacific Ry.
Co., 157 U. S. 229.
4 Davis v. Peabody, 170 Mass. 397;
I and Co. v. Peck, 112 Ill. 408. The
It is not
shareholders and members of a cor-
poration have a right to bring suits
on behalf of others similarly situated.
This does not embrace those who
have no community of interest with
the plaintiff, or who by contract or
circumstances occupy different posi-
tions from the plaintiff. Such join-
der must be by those who occupy the
same position as the plaintiff, and
should be limited to those alone.
Tuling v. Atlantic Mut. Ins. Co., 45
Barb. 510: Robinson v. Smith, 3 Paige,
222; Walker v. Devereaux, 4 Paige,
256; Hawes v. Oakland, 104 U. S. 450.
5 Todd v. Mizner, 4 J. J. Marsh. 447.
§§ 662, 663.] IAW OF ACTIONS. 1107.
only not necessary, but improper, to bring in parties not inter-
ested in the cause, simply because they are interested in the
property in some collateral way." |
Multifariousness is the term used in equity to denote the
joining of too many parties or subjects in one bill. The prin-
ciple governing the joinder of parties is the same in both fo-
rums; that is, there must be a common or joint interest of all
parties in the subject of the suit and the relief or judgment.”
SEC 662. Joinder of Causes is not allowed in equity to the
extent of bringing in distinct causes. In legal actions several
distinct causes may be joined in one action, provided they are
of classes to be joined, using separate counts for each cause.”
But in equity two entirely independent matters cannot be liti-
gated in a single suit.” But the whole of what is a single trans-
action must be litigated. A case cannot be split up and tried
in piecemeal.”
Multifariousness should be objected to by demurrer, but may
be raised by answer, and must be raised by one or the other
of these modes, unless the court, of its own motion, declines to
proceed."
SEC. 663. Pleading is the legal designation of the mode or
modes of statement by which the facts of a case, controversy
or proceeding are exhibited to a judicial tribunal for hearing
and decision; or, in other words, pleading relates to the mode
of alleging the facts of a case."
Our law literature abounds in treatises on common-law plead-
ing, code pleading and equity pleading, and the natural inquiry
is, Is there a distinct system of pleading for each of these ?
The purpose of the following remarks is to show that while
the law and equity courts each originally developed its own sys-
1 Ch. T. Soc. v. Gage, 109 Ill. 175;
Jones on Mort., § 1440.
2 Luling v. Atl. Mut. Ins. Co., 45
Barb. 516; Boyd v. Hoyt, 5 Paige Ch.
65; 3 Lawy. Ed. 629, note; Whitney
v. Fairlands, 54 Fed. Rep. 985.
3 Andrews' Steph. Pl. 310; Craft
Ref. Co. v. Quinnipiac Brewing Co.
(Conn.), 25 L. R. A. 856. Numerous
specific deals involved in one con-
tinuous transaction may be decided.
|Rilbourn v. Sunderland, 130 U. S.
505.
4Id.; Story’s Eq. Pl., § 271; Walker
v. Powers, 104 U.S. 245; Merwin's Eq.,
§ 923; Winslow v. Jenness, 64 Mich.
84; Whiteside Co. v. Burchell, 31 Ill.
68.
5 Beloit v. Morgan, 7 Wall. 617;
Litch v. Clinch, 136 Ill. 410.
6 Gilmore v. Sapp, 100 Ill. 302.
73 Cooley's Blk. (4th ed.) 293.
1108 LAW OF ACTIONS. [$ 663.
tem of practice and form of statement, and each still preserves
some distinctive rules or incidents peculiar to the nature of the
subject and mode of trial, so far as the main body of rules and the
governing principles of pleading are concerned, the system of
rules of pleading developed in common-law cases in England
governs and guides them all. That is, the so-called common-law
rules constitute the main body of every system of pleading, each
system having some peculiar rules." And since the idea of mark-
ing the points of impact or contest in cases by raising issues of
law and issues of fact has developed, and the almost total disuse
of discovery in bills, the reasons for the chief differences have
disappeared; and although the form of statement in an equi-
table suit and the instruments of pleading, i. e., bill, answer,
pleas, supplemental bill, etc., differ, these do not affect the
principles and rules which guide in the statement of the facts
and denials made use of in these various documents. Again,
when the suit is contested by plea, the old idea of chancery
pleading as to that part of the case disappears entirely.”
The Objects of Pleading.—The primary object of all written
pleadings is to ascertain the subject-matter of the suit, i. e.,
the cause of action, and to limit the matters of law and fact
which are in dispute between the parties.
The first branch determines the jurisdiction of the court over
the subject-matter.” The second limits the exercise of jurisdic-
and redundancy or the pleading
Of evidence, but there are no dis-
1 It may be doubted if there ever
was a system of pleading in equity
made up of rules of allegation differ-
ent from the common-law rules. Prof.
FIaynes, in a course of lectures be-
fore the English Incorporated Law
Society in 1838, contrasting law and
equity procedure, states that the ab-
sence of any specific rules or system
is one of the advantages of chancery
procedure. Haynes, Outlines Eq.,
pp. 66, 67, Appendix, *291, Law Lib.,
vol. 98. And it is remarkable that in
most of the text-books entitled Equity
Pleading, no rules of pleading are
given differing from the rule al-
ready established by the law courts.
Names are changed, such as denial
for traverse, multifariousness for du-
plicity, impertinence for surplusage
tinctive rules, properly so called. One
of the chief aims of Lubé, in his
treatise on Equity Pleading, was to
show that the basic principles of
pleading were the same in both ju-
risdictions. Lubé, Eq. Pl., Preface.
* The student should here be told .
that it is allowable to answer a part
of a bill and plead to another part.
& Lubé, Eq. Pl., §§ 182, 183. 205; Ker-
foot v. People, 51 Ill. App. 409, cit-
ing Dickey v. Reed, 78 Ill. 261; Wind-
sor v. McVeigh, 93 U. S. 274; United
States v. Arredondo, 6 Pet. 691; Mun-
day v. Vail, 34 N. J. L. 418; People
v. Liscomb, 60 N. Y. 559; Pomeroy,
Eq. Jur., § 129.
§ 663.] LAW OF ACTIONS. 1109
tion, because the court has no authority, in any form of action,
to decide without allegation," and governs the relevancy of evi-
dence.”
Framing of Issues.—What questions are contested is ascer-
tained by the framing of issues of law or fact, showing the
precise points the parties intend to litigate and the facts they
intend to admit.”
Jºes Adjudicata Determined by the Issue.—Another object of
written pleading is to furnish a record which shall show what
has been litigated, in order that the parties shall not be twice
vexed for the same cause, and the court called upon to try a
case more than once.”
The Common-law System of Pleading Peculiar.— It has here-
tofore been remarked that trial by jury was peculiar to the
British constitution.”
The fundamental rules of procedure in reference to trial
under this system was that it was the province of the jury to
1Id.; Angelo v. Angelo, 146 Ill. 629;
Pom. Code Rem., § 554.
2 Andrews' Steph. Pl. 1.
*The framing of issues to guide the
court and the parties is now required
in chancery cases, having been in-
troduced in analogy to the common-
law practice. Keener v. Finger, 70
N. C. 48; Lubé, Eq., § 211. The
theory and issue govern to the same
extent in both jurisdictions. Reed
v. Jourdan, 109 Mich. 128; Angelo v.
Angelo, 146 Ill. 629; Andrews’ Steph.
P]. 1.
4 Res Adjudicata.- It is a rule that
a cause of action once finally de-
cided shall not be tried again. An-
other rule is that a fact once litigated
shall not again be litigated between
the same parties or privies. The
first relates to a cause of action, the
second to some fact which, although
perhaps not the cause of action in
either the action pending or the suit
wherein the judgment or decree re-
lied upon was given, was actually
ditigated in the former suit. In the
first situation the pleadings are the
only evidence of the cause of action.
In the second situation (i. e., where
the causes are not claimed to be the
Same), resort is had first to the issues
joined. If these are vague, indefinite
or general, evidence may be taken as
to what was actually disputed and
actually decided. In the first case
Supposed the adjudication extends to
every fact which might have been
litigated under the issue. In the sec-
Ond. Only the fact actually decided.
Cromwell v. County of Sac, 94 U. S.
351; Outram v. Morewood, 3 East,
346; Duchess of Kingston’s Case, 2
Sm. Ld. Cas. 734, notes; Riverside
Co. v. Townshend, 120 Ill. 9. The dis-
tinction between using the former
suit as a bar to a second suit for the
same cause of action and using a
former adjudication of a fact as
an estoppel to litigating it in a
second suit must be kept clearly
in mind. See Lewis’ Appeal, 67 Pa.
St. 164; Moulton v. Libbey, 15 N. H.
480.
53 Cooley's Blk. (4th ed.) 379,
note.
1110 IAW OF ACTIONS. [$ 663.
decide questions of fact; of the judge to decide questions of
law."
This required a system of allegation (pleading) which would
separate the questions of fact from the questions of law, in
order that the respective province of the judge and jury might
be the more readily and intelligibly exercised.”
This is the occasion evolving issues.”
The utility of thus separating the law from the fact in all
cases, irrespective of whether these were to be tried by a jury
or a judge, and especially for the purposes of appellate proced-
ure, finally caused the introduction of the issue in every form
of proceeding, and has reduced the points of divergence be-
tween law and equity pleading to a few subordinate rules,
which can hardly be called rules of pleading, but are rather
rules of practice based on the policy of the law in reference to
the subject of the suit.”
The introduction of the issue in chancery pleading came about
as follows: In ancient times the rules of pleading in com-
mon-law actions were not applied. The complainant stated
the facts of his case at large, and the defendant did likewise.”
From these loose recitals and statements the chancellor selected
from the mass the material matters,” and these were termed by
1 Andrews' Steph. Pl. 102–148.
* “It is hardly too much to say that
the common-law system of pleading,
if not historically a consequence of
the severance of the functions of the
judge from those of the jury, is al-
most a necessary condition to the
working of any judicial system in
which such severance exists.” [1858.]
Prof. Haynes' Outlines of Equity,
p. 65. This book is volume 98 of
“Law Library.”
3 Andrews’ Steph. Pl. 210–214.
4 E. g.: The policy of equity is to
require an answer, and formerly de-
faults were unknown as a form of
admission; and now the rule is that
matter alleged in the bill and not
admitted by the answer must be
proved by the complainant. In law
a default was taken as a confession,
and judgment followed. So, logically,
the rule in law cases was that every
fact not traversed was confessed. But
this rule is applied in equity cases
Only for the reason stated. If, instead
of answering, the defendant elects
to plead some one fact as a defense,
he impliedly admits the part of the
bill pleaded to, precisely as at law.
Detroit, L. & N. Ry. Co. v. McCam-
mon, 108 Mich. 368.
* Of course there were then no
skilled pleaders, and no definite the-
Ory was required. The chancellor
then performed the work the plead-
ers must now perform.
6 This informal narrative was for-
merly supposed to be a great advan-
tage, but in time gave way to the
idea that a distinct theory must be
advanced, and the party must indi-
cate not only his evidence by way of
recital, but the legal facts he claims
to result from them; and this is now
the universal rule. Amte, p. 1060.
§ 663.] LAW OF ACTIONS. 1111
the clerical practitioners, who depended on the civil law for
their guide, the liffs contestatio. The common lawyers anciently
called the ultimate points for decision the eacitus — issue, or end
of the pleading. Two systems so divergent existing side by
side could not preserve their integrity, and when the law plead-
ers began to practice in the chancery court the courts, began
to influence each other; the chancellor began to send questions
which he framed out of the mass of statements to the law courts
for trial by a jury. In this, manner the issue was introduced
from the common-law courts, and in time supplanted the “liffs
contestationes.”" The issue never, however, so long as the
mingled form of bill for relief and discovery survived, became
so clearly marked in chancery as at law, and every bill for-
merly mingled these objects; but since the recent evidence acts,
the positive allegation in the bill of facts is required, and a di-
rect denial or admission in the answer without evasion or argu-
ment, and the result is a traverse of material facts or control-
ling question of law, which results in an issue of law or of fact
Anade out of the pleadings.” *
The Codes do Not Abolish the Substantial Rules of Pleading.
Mr. Justice Rodman, in the case just cited, states the object and
effect of the code on the system of pleading: “This code of
New York (which in this respect has been almost literally
copied in our own [North Carolina]) enacts rules of pleading
which essentially, and in all respects in which the common-law
system is distinguished from the chancery system of ascertain-
ing the issue, are those of the common law. This may be seen
by comparing the rules of the code with those given by Ste-
phen.” By these the parties are or may be compelled to come to one or
1 See opinion of Rodman, J., in
Reener v. Finger, 70 N. C. 35. The
admitted as a fact, the legal effect,
may be questioned by raising an
learned judge gave an account of the
introduction of the practice of fram-
ing issues in chancery; citing Ste-
phen's Pl., pp. 24, 54, 124 and 444;
Andrews’ Ed. 102, 148, 210, 432.
*An issue of fact is brought about
by a traverse, or denial of a fact al-
leged by the opposite party. Such a
traverse always tenders an issue, and
at law or in chancery, if the fact al-
leged in dispute is material, it must
be either traversed or admitted. If
issue of law by demurrer, or any
other mode of questioning the suffi-
ciency of a pleading.
3It should be emphasized that Ste-
phen in reality codified the law of
pleading. His method is precisely
that followed by the New York Code:
Commission. His materials are the
then existing rules, which until his.
time had never been arranged as a
system without regard to forms of
action. Fitz James Stephen's Evi-
1112 LAW OF ACTIONS. [$ 663.
ºnore issues decisive of the case; and although in practice it often
happens that the desirable result is not attained, it is from neg-
ligence in the pleaders and indulgence in the courts, and not
from anything in the rules designed to produce such an abor-
tive result.”!
The Relation of Code, Common-law and Equity Pleading.—
Whatever technical differences formerly existed between the
object of pleading at law and in chancery in reference to the
elucidation of issues and the form of allegation, which in law
was direct and confined to the ultimate facts, while in chan-
cery the circumstances were stated more at large, had largely
been greatly modified before the code was adopted in New
York.” The influence of the codes is to abolish all technical
and formal differences, and to reduce the substantial ones to
the minimum; and such is the tendency in all jurisdictions.
The main object of a bill in chancery was formerly to com-
pel the defendant to make full, complete and direct answer.
Anciently there was no default in chancery, and no relief could
be had until answer was made, and then relief was on the an-
swer. Such a proceeding required that the bill should recite
at some length the incidental or evidentiary facts, and ask the
defendant to make specific answer to these. The framing of a
specific issue was, in such cases, of no importance under the
ancient practice.”
In modern times, however, much less importance is attached
to the defendant’s answer, unless he is called upon to answer
wnder oath, and the modes of allegation have become gradually
assimilated. The complainant affirms and the defendant de-
nies, and thus issues have been introduced into chancery. For-
merly no particular theory was required and no specific relief
prayed, it being left to the chancellor * to disentangle the nar-
rative and give such relief as the case required.”
Now these matters are changed. The issue is introduced in
dence Acts and Chalmers’ Digest of 1 Keener v. Finger, supra.
the Law of Bills and Notes are con- 2 Hood v. Inman, 4 John. Ch. 437.
structed on the same model. Ste- 3 Lubé, Eq. Pl., § 204; Hawley v.
phen gives only thirty-eight principal Wolverton, 5 Paige, Ch. 522; Van
rules; all the rest are subordinate to Santvoord's Pl., 62.
these. See Table of Contents of any 4 Adam, Eq., 307.
edition. 5 Keener v. Finger, 70 N. C. 35.
§ 663.] - LAW OF ACTIONS. 1113
analogy to the common law. The oath may be waived, the de-
fendant defaulted, and the issue tried by calling witnesses."
It was formerly the rule in all pure bills for relief, and as to
that part of of the bill not aiming at discovery, that the same
mode of allegation of fact should be adopted in chancery as
at law.”
Van Santvoord, in his treatise on Pleading under the New
York Code, states the old law quite clearly: -
“Under the old practice in chancery a bill of complaint might
have a twofold object—discovery and relief. A bill for discovery
and relief, in addition to the grounds for relief, might state
matters of evidence which were material in establishing the
main charge or in determining the nature and extent of the
relief; * but
“A bill merely for relief should contain allegations of fact en-
titling the party to it substantially ºn the same form as aver-
onents in an action at law.” This was the old rule of equity
pleadings.
“The pleadings should consist of allegations of facts, stated
with as much brevity and precision as possible, not of inference
or argument.” In Mechanics’ Bank v. Levy, above cited, the
chancellor says: ‘The allegations in the bill, so far as the ques-
tion of the complainant's right to the relief is concerned, are
substantially in the same form as the averments in a declara-
tion at law, and the pleader must state his client's cause of
action in such a manner that the main facts upon which his
right to relief depends may be put in issue and tried.” So much
in respect to the question of relief; but the complainant was
also entitled to a discovery, and accordingly, under the old
equity system, he might, to quote from the same opinion, “state
any matters of evidence in his bill which may be material in
establishing the main charge, or in ascertaining the nature or
kind of relief proper to be administered, and may interrogate
the defendant as to these matters.”
“The discovery is now abolished by the code. The pleading can
no longer be used as a method of examination or to obtain evi-
1 Lubé, Eq. Pl., § 211. 3 Mechanics' Bank v. Levy, 3 Paige,
* Hood v. Inman, 4 John. Ch. 437; 606.
Chambers v. Chalmers, 4 Gill & J. *Id.
441; 23 Am. Dec. 591. 5 Hood v. Inman, 4 Johns. Ch. 437.
1114 LAW OF ACTIONS. [$ 663.
dence in the aid of the relief sought. Nothing is left of the
old equity mode of pleadings but the simple allegations of
facts material to the relief sought, and which go to establish
the plaintiff’s case; and whether these facts were one or more,
they were required, as we have seen, even under the old equity
system, to be set forth substantially the same as averments at
law, and were required to be such as might be put in issue
&nd, #7,220.” ”!
The same result is indirectly accomplished by the practical
abolition in all states of the bill of discovery, and the discovery
part of bills of relief and discovery, brought about by the mod-
ern evidence acts.”
The constitutional requirement that the right to a jury trial
in common-law cases must be protected, and that a jury trial
is not a requisite in equity cases, accounts for all the difference
in form which remains between chancery and common-law
pleading. The first New York code necessarily provided for
this in a manner to preserve all of the ancient differences, but
did not increase them, and this model has controlled elsewhere.”
The codes expressly contemplate the framing of issues.
The dependence of code pleading upon the principles of the
common-law system is no longer a disputed or debatable point
in American jurisprudence. Bliss in his treatise on Code Plead-
ing says: “It is assumed that the student of the code is fa-
1 Van Santvoord’s Pl., 65, 66.
2 Amte, pp. 1088, 1089.
8 Mason, J., in Hill v. McCarthy, 3 N.
Y. Code Rep. 49, says: “While, how-
ever, the present code of procedure
has abolished all distinction between
law and equity, so far as the form of
the action and the jurisdiction of
this court is concerned, and so far as
the mode of commencing suits and
the forms of pleadings, etc., are Con-
cerned, still there is recognized, so far
as the forum before which the trial
shall be had, to a certain extent, a
distinction still. The two hundred
and fifty-third section of the code
provides that whenever an issue of
fact shall be joined in an action for
the recovery of money only, or of
specified personal or real property, it
must be tried by a jury, unless a
jury trial be waived as provided in
section 266, or a reference be Ordered
as provided in sections 270, 271; and
the two hundred and fifty-fourth
section provides that every other issue
of facts shall be tried by the court,
unless the court shall order the whole
or some specified question of fact
therein to be tried by a jury, or shall
refer it as provided by sections 270,
271. It will readily be perceived
upon a moment's reflection that the
effect of sections 253 and 254 is to .
throw the trial of all questions of
fact in the old common-law actions
upon the court and jury; and at the
same time to throw the trial of the
whole class of equity suits upon
the court without a jury, unless for
some special reason the court shall
order such issue to be tried by a jury.”
§ 663.] LAW OF ACTIONS. 1115
miliar with the common-law and equity systems of pleading.
If not, he is groping in the dark, and much which is offered
(in his book) will escape his apprehension. This knowledge is
deemed essential . because the foundation idea of plead-
&ng is not changed.”" -
The relation between law and equity pleading is not so well
understood. Lawyers and text-writers do not sufficiently dis-
tinguish between the forms of procedure and the rules and
principles of pleadings, properly so regarded, and so the idea
has obtained that the principles and rules of pleading are as
divergent as the practice and formal instruments in which these
pleadings are set forth. Such, it is apprehended, is not the
CàSè.
Long after Stephen had formulated the fundamental rules
of pleading classed with reference to their objects without re-
gard to the form of action, Lord Cottenham said: “The whole
anachinery of pleading in equity is somewhat cumbrous and not
quite well reduced to principle.”” -
“At an early stage in the development of the equity juris-
diction of the court of chancery in England, the pleadings in
equity conform very nearly to those at the common law,” and
notwithstanding the difference in the machinery of equity,
and the discovery branch of all chancery suits, the true prin-
ciples of pleading, so far as any were established and stated,
were the same as those used in the law courts. Tyler says: “The
bill must state the case in direct and positive terms and with
reasonable certainty. Allegations must be positive and not by
way of recital, and must be of facts only. . . The well-
established principles of equity pleading require nothing more
than a simple statement of the plaintiff’s case with a prayer
for relief and process. . . . The defendant must answer
. . . positively and directly and not by way of argument.”*
Now these are the principles
legal actions.
which govern the pleading in
1 Bliss, Code Pl., § 141. Prof. Bry-
ant and Judge Phillips introduce
their treatises with a short review of
the common-law system, the for-
3mer using the rules formulated by
Stephen. The late Judge Cooley
says: “Let the common-law rules be
mastered and the work under the
code will prove easy and simple.
Int, to Cooley's Blk. (4th ed.), xxvii.
2 Foley v. Hill, 3 Mg. & Cr. 482
[1838]; Tyler's Mitford, Eq. Pl. 84.
3 Mitford, Eq. Pl. (Tyler's ed.), In-
troduction, p. 83.
4Id., pp. 65, 66, 67.
1116 LAW OF ACTIONS.
[$ 664.
SEC. 664. Structure of a Declaration or Complaint and of a
Bill in Equity.—Before explaining the distinguishing features
between pleading in law and equity cases, the structure of the
complaining parties' pleading may be profitably examined.
A declaration or count' in a legal action contains either
eight or nine parts, according to the nature of the suit.”
The caption, designating the court.”
The title of the case, stating who is suing and who is sued,
and the nature of the suit, which was formerly the result of
the original writ.”
The Inducement.— A recital showing the relation between
the parties on which the duty violated is claimed to rest. It
may be a contract, or in negligence cases the relative situations,
and an allegation of such duty as a legal fact.” -
The charge, which may be a breach of contract, covenant,
etc., or negligence, malice, or the like, or a forcible trespass to
person or property." .
The injury and ad dammum clause are alleged after the alle-
gation of the charge, breach of contractual obligation, trespass,
negligence or malicious injuries, by alleging “whereby the
plaintiff is injured, and has sustained damages in the sum of,”
etc.
If there are special damages, e.g., expenses incurred, loss
of profits, special consequences of a libel, loss of employment,
etc., they must be alleged."
1 A declaration may have several
Counts. Each count must state a com-
plete cause of action. The descrip-
tion here is of a single count. Many
may be joined in one declaration.
Andrews’ Steph. Pl., 310, note.
2See Supervisors v. Decker, 30 Wis.
624; T., W. & W. Ry. Co. v. McLaugh-
lin, 63 Ill. 389.
3 Id.
4 See theory, Andrews' Steph. Pl.,
§ 218.
5 In direct forcible injuries, where
the acts charged in the charging
clause are prima facie unlawful, no
inducement is required. The induce-
ment serves to show why the acts
are an injury to the plaintiff. See
People v. Ryder, 12 N. Y. 433.
6 In some cases special damages
will support an action which other-
wise would not lie; e. g., slander,
where the words are not actionable
per se, and case, for a nuisance public
in its nature, where a private party
can sue only because of a special in-
jury.
7 Declarations in libel Cºnd slander
present an anomaly in pleading in
the use of a phrase in the induce-
ment called a colloquium, and in the
charge of an explanatory phrase
called the innuendo. The former con-
sists in alleging that the malicious
discourse (speech) Or publication
(writing) was of and concerning the
plaintiff. The latter is occasioned by
the rule requiring the words to be
§ 664.] LAW OF ACTIONS. 111'ſ
Signature of declaration by counsel, or by the party (prose)
if he has no counsel, is required.
A Bill in Equity — Ancient Forms Becoming Obsolete.—A
bill in equity formerly had a double object: the statement of the
cause of action by means of the stating and charging parts,
and the examination of the defendant as to the facts and cir-
cumstances involved. Inasmuch as this examination under oath
was the only way of getting the defendant's testimony, it was
until the recent evidence acts a very important branch of a bill
in equity. Since these acts, bills of discovery are very infre-
Quent. The weight given to an answer under oath, which is
the only way the defendant can be required to answer specific-
ally, and the right to call him as a witness, has rendered such
specific questioning unnecessary. These two reasons have ma-
terially changed the structure of bills in equity.
The Parts of a Complaint in Equity.— The address formerly
took the shape of a petition to the chancellor, later to the “hon-
orable judges” of the court, designating it, with no caption.”
The stating part indicated who sued, and, after naming each
of the complainants, as your orators, J. Doe, etc., proceeded
to state and show to the court the nature of the relation be-
tween all persons connected with the transaction or interested
in the subject-matter, and the circumstances showing the rela-
tive rights, obligations and duties of the particular persons
to be subsequently named as defendants. This corresponds
eaactly with the inducement in the declaration.” -
The charging part alleges the facts, conduct and acts which
are the grounds of suit, accident, mistake, fraud, fiduciary
relationship, threatened injury, etc., suitable to any of the
several forms of equitable suits.” These facts must be alleged
with the same directness, conclusiveness and certainty as is re-
quired in allegations of fact in a law case.”
Substantially repeated in the declara- complainant to examine the defend-
tion, and these being often ambigu- ant under oath. 1 Greenl. Ev., § 361;
Ous, the plaintiff is allowed after each Bragg v. Geddes, 93 Ill. 89.
word to throw in his construction of 2 No title to the cause; e. g., J. Doe
the meaning intended by the defend- v. R. Roe, is inserted.
ant. Andrews’ Steph. Pl. 124; Lewis 8 Lubé, Eq. Pl., § 217.
v. Chapman, 16 N. Y. 371. 4 Ante, p. 1072.
1 Under the old chancery practice 5 “The code has by no means dis-
an Order could be obtained by the pensed with that certainty and regu-
1118 JLAW OF ACTIONS.
The interrogating part (now obsolete) consisted in questions
put to the defendant as to the evidentiary facts and circum-
stances, precisely as a witness is questioned in a modern depo-
sition.
Prayer for Relief.- This part of the bill generally begins
with the unnecessary recital that there is no adequate remedy
at law, followed by a petition for the specific relief against each
and all the persons, naming them (with their residence), who are
made defendants, followed by a general prayer that the com-
plainant shall have such other and further relief as equity re-
quires and the court deems most proper."
The prayer for process prays the court to issue the writ of
subpoena in chancery, summoning the defendant to appear at
the next term of the court and then and there answer the bill.
Prayer for special processes of preliminary or temporary in-
junction, ne eweat, etc., may be added. -
Signature and oath of party are generally required.
Signature of counsel or solicitor is required.
Impertinence in equity pleading consists in introducing un-
necessary, redundant and immaterial recitals in the stating or
charging part of a bill. It corresponds to redundancy and sur-
plusage in common-law pleading.”
From this explanation of the structural parts of the com-
plainant's instrument of complaint, it is plain that in general
the rules for alleging or stating facts in all forms of action
will naturally be the same, and that only in special particulars
do they differ. -
larity in pleading which is essential
to every system adopted for the ad-
ministration of justice (Rowland v.
Windley, 82 N. C. 131); and that now,
as in the old equity practice, “there
should be such certainty in the aver-
ment of title upon which the bill is
found that the defendant may be
distinctly informed of the nature of
the case he is called upon to meet.’”
Story, Eq. Pi., § 241; Dunn v. John-
son, 115 N. C. 249. -
Pleading — Theory.—See Variance
and Amendments.
A plaintiff should not be allowed
to frame his complaint in ambiguous
language and then complain that he
has been held to one of two possible
Constructions. The complaint in this
Case Contained one hundred and
fifty-eight pages, besides a copy of
the judgment roll. Alexander v.
Donahoe, 143 N. Y. 203.
! Prayers may be framed in the al-
ternative. Hardin v. Boyd, 113 U. S.
756. The general prayer will support
a decree for any relief consistent
with the theory of the bill. Beebe v.
Bank, 1 John. 547. -
* Hood v. Inman, 4 Johns. Ch. 437.
§ 665.] * IAW OF ACTIONS. 1119
SEC. 665. Instruments of Chancery Pleading."—The bill sets
forth the complainant's cause and grounds of action.
There is no repugnancy in different allegations in the same
bill or answer by reason of the pleading taking different
grounds.
It is allowable to state two distinct and independent grounds
on which relief or defense is based, and if either is sufficient it
is not impaired by the fact that it is joined cumulatively with
another allegation, which, of itself, will not maintain the equity
of the bill.” t -
An Information.—Where the public brings a suit in chan-
cery in reference to some subject-matter other than what
would be a mere private transaction but for the parties, the
suit is brought by an information instead of a bill, in the name
of the state or the attorney-general on the relation of some
private person, or, if there is no relator, without this element.”
Amendments to the bill are corrections of the statements of
the case and the addition of material facts which existed at
the time of the filing of the bill, or the addition of new parties
to the case.* . -
An amended bill is used where the amendments are so con-
siderable as to amount to a restatement of the case.
It may
change the theory of the complainant.” -
A supplemental bill proceeds upon a theory different from .
1The reforms in procedure have
made great changes in the names
and modes of questioning the suffi-
ciency of the documents, but there
has been little or no change in the
underlying principle.
2 Bennett v. Vade, 2 Atk. 324; Ship-
man v. Furnace, 69 Ala. 555.
3 Such are the great injunction,
quo warranto and mandamus cases
we have noticed. h
4 Ante, p. 1061; Story, Eq. Pl., § 332;
Stafford v. Howel, 1 Paige, 200. How-
ever defective a bill may be, even
though it is lacking in jurisdictional
allegations, it may be made good ab
initio by amendments. Grimes v.
Grimes, 143 Ill. 556. It is not un-
usual for the appellate tribunal to
direct amendments to be made.
Nichols v. Drew, 94 N. Y. .22; Dob-
son v. Racey, 3 Sandf. Ch. 60. After
a cause has been heard, and a case
for relief established which differs
from the case disclosed by the bill,
but does not change the subject-
matter, an amendment which states
the real case will be allowed. Story,
Eq. Pl., § 893; Arnett v. Welch, 46
N. J. Eq. 543; Neale v. Neales, 9 Wall.
1; N. Ry. & C. Co. v. Long Dock Co.,
41 N. J. Eq. 407; The Tremolo Pat-
ent, 23 Wall. 518; Sawyer v. Camp-
bell, 130 Ill. 186. -
5 Story, Eq. Pl., § 333.
71 •
1120 LAW OF ACTIONS. [$ 665.
mere amendments, and because a court of chancery undertakes.
to adjust all equities between the parties up to the time of the
making of the final decree." A supplemental bill is necessary
to introduce into the case facts happening since the filing of
the bill” and introducing new parties who have become inter-
ested since that time.” It may very materially change the
structure and theory of the original case," but cannot intro-
duce a new cause not existing when the bill was filed.”
The replication is the reply of the complainant to the defend-
ant's answer or to the plea, wherever it is intended to traverse.
the matters alleged in the answer or plea."
Demurrer to bill or cross-bill is the only demurrer that a com-
plainant in chancery can file, it not being allowable in chancery
to demur to anything excepting a bill."
Cross-bill to a Cross-bill.—It is allowable in some instances
for a complainant to file a cross-bill to a cross-bill filed by the
defendant.
JDéfendant’s Pleadings.-Ordinarily the great instrument of
defense used by the defendant is the answer. It has two prin-
cipal objects.” First, is to make direct and complete answers.
to the statements and charges of the bill of complaint.” Sec-
ond, to bring forward the affirmative defenses, i. e., to allege
affirmative facts not alluded to in complainant’s bill of com-
plaint, but which are relied upon by the defendant to defeat the
effect of the facts alleged by the complainant."
An answer, then, consists of admitting those facts which are
true, and denying or traversing those which are claimed to
1 Loaby v. Redmond, ante, p. 1070, allowed traversing specific points,
note 4.
2 If facts existing when the bill is
filed must be mingled with those
happening since, the proper instru-
Iment is a supplemental bill. Story,
Eq. Pl., § 332; Walker v. Gilbert, 7
S. & M. 456. They are not a new
proceeding. Rigney v. Rigney, 127
N. Y. 408; Id., 160 U. S. 531.
3 Wilson v. Wilson, 93 Va. 546.
4 Story, Eq. Pl., § 333.
5 Ledwith v. Jacksonville, 32 Fla.
1; Neubert v. Mastman, 37 Fla. 91.
6 Formerly special replications were
but now pleadings in equity stop.
with a general replication denying
the truth and sufficiency of the an-
swer, and asserting the truth and,
sufficiency of the bill.
7 Story, Eq. Pl., § 456.
8 Stone v. Moore, 26 Ill. 172.
9It must admit or deny the charges:
in a bill, not evasively but directly.
IPuterbaugh, Ch. Pl. 167; Bauerle v.
Long, 165 Ill. 345. It must apprise-
the complainant of the theory of de-
fense. Ante, p. 1060.
10 Id.
§ 665.] LAW OF ACTIONS. 1121
be untrue,' and alleging additional new matter by way of de-
fense.”
A plea is a special answer to a bill or some part thereof, show-
ing and relying upon one or more additional facts as a reason
why the suit should be abated, or suspended, or completely
barred.” .
Demurrer is a pleading by the defendant questioning the
legal sufficiency of the bill, and contains no allegation of new
matter, but tenders only an issue of law. It is consequently
an admission of the bill.”
A cross-bill is used by the defendant when he seeks affirm-
ative relief against the complainant, in which case he states
the cause of action which he claims he is entitled to, and the
relief which should be given him as against the complainant
1 Admission in Chancery Pleading.
The facts alleged in the bill bind the
complainant. Bebee v. Bank, 1 John.
546. A fact alleged by the defend-
ant in his answer may aid the plaint-
iff without amendment. Bang v.
Phelps, 96 Tenn. 351.
Implied admissions are the direct
Opposite of those in law. In equity,
matters neither denied nor admitted
by the opposing pleading must be
proved by the party affirming them.
Litch v. Clinch, 136 Ill, 410. But if
the answer in pleading mentions the
allegation in dispute and answers it
evasively, the fact is admitted. Mc-
Vey v. McQuality, 97 Ill. 93; Corbin
v. Com., 2 Met. (Ky.) 280.
An answer responsive to the bill
operates as evidence for the defend-
ant. Coldiron Co. v. Ashville Co., 93
Va. 364. But even a sworn answer
is not final and conclusive. Edwards
v. Rodgers, 41 Ill. App. 405. Such an
answer can only be overcome by evi-
dence outweighing that of a single
witness. Godden v. Kimmell, 99 U. S.
206; Bragg v. Geddes, 93 Ill. 39. The
special traverse is appropriate in
equity pleading. Lubé, Eq. Pl., § 343;
Litch v. Clinch, 136 Ill. 410.
*The matters of fact made use of
in this part of an answer may also
be used in a plea. Stone v. Moore, 26
Ill. 172.
* Lubé, Eq. Pl., § 214, citing Mit-
ford's Pl. 178. These pleas may be
classified the same as pleas in legal
actions into pleas in abatement, in
Suspension to the jurisdiction of the
court, and in bar of the suit.
* A demurrer in equity, as at law,
admits only facts well pleaded and
not all general allegations. United
States v. Des Moines, 142 U. S. 510;
Miller v. Davidson, 3 Gilm. 518; ante,
p. 1070. If the facts fully appear in
bill a demurrer may raise the ques-
tion of limitation or laches. Answer-
ing over after a demurrer to the bill
waives the demurrer. Bauerle v.
Long, 165 Ill. 340. In some jurisdic-
tions the specific grounds of demur-
rer must be set forth, and each ground
is regarded as a special demurrer.
S. & N. A. Ry. Co. v. H. A. & B. Ry.
Co., 104 Ala. 233. Where such is the
rule, a general demurrer that there is
no equity in the bill is not sufficient.
Pate v. Hinson, 104 Ala. 559. But
in most states a general demurrer is
allowed. Cochran v. Adams, 50 Mich.
16.
1122
LAW OF ACTIONS. [$665.
party. It is a defense which necessarily he must use in con-
nection with and only after he has answered the bill of com-
plaint.” - - .
The defendant’s replication is made necessary by the plead-
ings, following the cross-bill in precisely the same manner as
a replication is used by the complaining party on the original
bill.
A disclaimer is a defendant's statement that he claims no
rights or interest in the subject-matter of the suit.”
The Forms and Use of Defensive Pleadings.--It is allowable
to plead to one part of the bill, demur to another part, and an-
'swer the balance of the bill, combining the three modes, so that
the whole bill is met by some form of defense.”
One cannot answer and demur to the same matter. An
amendment to a bill, however trivial and unimportant, author-
'izes a defendant, though not required to answer, to put in an
answer making a new defense and contradicting his former
3 IASW GI*.
An amendment to a bill does not, however, enable a defend-
'ant who has answered the original bill to demur to an amended
bill upon any cause of demurrer to which original bill was
open, unless the nature of the case made by the bill has been
changed by the amendment.”
A defendant cannot, after he has answered an original bill,
put in a general demurrer to the bill as amended, because the
answer to the original bill will overrule the demurrer. A de-
1 Equities may be adjusted between
defendants without any cross-bill.
Williott v. Pell, 1 Paige, Ch. 268; Yates
v. Stuart’s Adm’r, 39 W. Va. 423. But
one defendant who desires affirma-
tive relief against the complainant
or a defendant must file a cross-bill.
Id.; Story, Eq. Pl. 392; Jewett v.
Iowa Land Co., 64 Minn. 531.
2 A cross-bill must be confined to
matters which are involved in the
original bill, and is filed to enable
‘the defendant to fully avail himself
of some defense by making his re-
dress complete through the granting
of affirmative relief, which could not
be done under the original bill and
the answer. Andrews v. Kibbie, 12
Mich. 94; Griffin v. Griffin, 112 Mich.
87. This is an important case, mak-
ing parties and bringing in new par-
ties by the cross-bill.
& Lubé, Eq. Pl., § 22.
4Lubé, Eq. Pl., § 22. But this rule
must be qualified in its application
to demurring to one part and plead-
ing or answering to another part, by
observing that a demurrer can lie
only to an integral part, as either the
discovery or the relief prayed. See
Story, Eq. Pl., § 441. .
31 Dan. Ch. Pr. (15th ed.), p. 409.
§ 665.) . LAW OF ACTIONS. 1123
fendant must in such case confine a demurrer to matter intro-
duced by the amendment." . . . . \
The defendant cannot urge, as a ground for demurrer to the
entire bill as amended, that the complainant has an adequate
remedy at law if he has made no such defense to the original
bill.”
Attacking the Answer.—The sufficiency of an answer in
chancery is to be tested by the peculiar modes provided by
the court of chancery for that purpose. A demurrer to an
answer is unknown in the equity practice of the federal courts,
as it was unknown to the practice of the high court of chancery
in England.”
The only way by which the sufficiency of an answer to the
bill in equity can be tested is by setting the case down for
hearing upon bill and answer, the effect of which is an admis-
sion by the complainant of all the averments of fact properly
pleaded in the answer and a waiver of any right to contest
them by replication and proof.” • -
In order to properly understand the mode of attacking an
answer, the twofold office of the answer should be borne in
mind. The first is to admit or deny each and every one of the
material facts set up in the complainant's bill; and second, to
bring forward and state to the court the nature of such affirm-
ative defenses as the defendant conceives that he may have.
It takes the place of the plea in the common-law practice, and
either confesses or denies the facts upon which the complain-
ant's equity depends, or confesses and avoids them by the in-
troduction of new matter, from which an opposite conclusion
follows.” -
If the complainant considers that the defendant's answer
does not fully answer what it professes to answer, or evasively
denies that which it mentions by way of denial, or that it con-
tains impertinent matter, or scandalous matter not pertinent
to the charge, or is in other like respects defective, he may file
11 Dan. Ch. Pr. 583. Miss. 341; Edwards v. Drake, 15 Fla.
* Bond v. Pennsylvania Co., 69 Ill. 666; 1 Dan. Ch. Pr. 542.
App. 507. 4 Barry v. Abbott, 100 Mass. 396:
* Crouch v. Kerr, 38 Fed. Rep. 5,49; Brown v. Mortgage Co., 110 Ill. 235;
Banks v. Manchester, 128 U. S. 244, 9 Stone v. Moore, 26 Ill. 165. -
Sup. Ct. 36; Travers v. Ross, 14 N. J. 5 Stone v. Moore, 26 Ill. 165; 2 Dan.
Eq. 254, 258; Winter v. Claitor, 54 Ch. Pr. 814.
1124. LAW OF ACTIONS. [š 666.
exceptions to it in which he states particularly what his objec-
tions are.
If there is nothing objectionable to the matter or the man-
ner in which it is stated, but it appears to the complainant that
the same presents no sufficient answer to the bill, he should set
the case down for a hearing, and in that manner test the suffi-
ciency of the facts alleged as a defense. This is the chancery
equivalent for the common-law demurrer. If the matter which
is set up seems to be irrelevant entirely, that may be ex-
cepted to."
Where, however, a demurrer is in fact filed to an answer,
and no objection is made thereto, the court may treat the de-
murrer as an application to set the cause down for a hearing
as upon exceptions on a hearing.”
Under the English chancery practice exceptions would not
lie to an answer not under oath; but in Illinois, under the pe-
culiar statute of that state, a bill in chancery not under oath
may be excepted to.”
SEC. 666. Practice.—The general subject of procedure is usu-
ally divided into the law of pleading, practice and evidence.
Practice embraces that body of rules which regulates the
time and manner of taking the various steps in a law-suit.
It must not be expected, however, that the subjects of plead-
ing, practice and evidence are independent, separate from each
other. They are in their actual administration intimately asso-
ciated one with the other. One cannot construct a treatise upon
the subject of evidence or pleading without embracing within
it much of the subject of practice. The subjects constantly in-
terlace. .
It will be readily understood that the subject of practice can
only be understood in connection with some particular code or
body of law, as the practice in New York or in Illinois, or com-
mon-law practice or equity practice.
Again, it is very difficult in many instances to point out and
distinguish with nicety whether a given subject most properly
belongs to the law of evidence or pleading or practice. E. g.,
do the rules regulating what is called the burden of proof fall
most appropriately under the rules of pleading or evidence 2
1 Stone v. Moore, 26 Ill. 165. 8 Hair Co. v. Daley, 161 Ill. 379.
* Barry v. Abbott, 100 Mass. 396.
§ 666.] LAW OF ACTIONS. 1125
Are those rules which regulate the mode of producing evi-
dence rules of evidence or rules of practice P These suggestions
show how necessary it is to treat and study the subject of prac-
tice with reference to some particular system, and in associa-
tion with the rules of pleading and evidence.
The details of practice at law and in equity, even in those
states where the old common-law procedure prevails in a modi-
fied form, differ materially in each state. In most of the states
of the Union the adoption of the reform procedure has made
essential changes from the ancient procedure. Again, the prac-
tice is not uniform even among the code states. For these rea-
sons, as well as those stated at the beginning of the chapter
and in the preface, no attempt will be made to treat in detail
the subject of practice.
Steps in Actions at Law.—The student will find an outline
and explanation of the proceedings in actions at law in chap-
ter 1 of the earlier editions of Stephen’s Pleadings. In chap-
ter 3 of the edition prepared by the author (Andrews' Stephen's
Pleading), beginning at page 60, and on this page is a synop-
tical outline of the proceedings in an action at law from be-
ginning to termination." -
Inasmuch as it is beyond the plan of the present volume to
enter upon a treatment of the details of procedure or practice,
and because, further, as has been heretofore pointed out, the
system of common-law pleading and procedure forms the foun-
dation of all other systems of practice, or point of departure
from which they diverge (in detail rather than in principle), the
author believes that it is indispensable as an introduction to
the study of procedure in American law that the substance of
what is contained in the One hundred and fifty pages making
up chapter 3 of the book referred to,” shall be acquired by the
student.” .
1 This outline is in no other edition.
3 Andrews' Steph. Pl., ch. 3. In no
other treatise accessible to Ameri-
can students is there such a succinct,
orderly presentation of these proceed-
ings. Other authors of books on
pleading assume in the reader a
knowledge of procedure, and confine
themselves more particularly to rules
of pleading, or mingle in a treatise
called a work on pleading the sub-
jects of pleading and practice. Steph"
en's plan was to outline the proceed-
ings for the purpose of applying the
rules which he treated in the subse-
Quent chapters of the book.
8 In the author's edition above re-
ferred to great pains was taken to
show the relation of Code and com-
mon law in these matters, with copi-
ous citation of decisions from code
and common-law states.
1126 LAw of ACTIONs. [$666.
The steps in a chancery suit adapt themselves to the most
convenient dispatch of the business of that court, which formerly
proceeded more deliberately than the law courts. -
Speeding the Cause or Dismissing the Bill.—After an equity
case is begun, it may be the desire of the defendant to have the
bill dismissed.*
It is not always a matter of course that the bill can be dis-
missed even by the plaintiff, although ordinarily this is his privi-
lege at any time before a cross-bill is filed.”
Order of Proceeding — When and by Whom Taken.—Under
the earlier practice in chancery, if the plaintiff did not pro-
ceed with the steps necessary on his part to bring the cause
to a hearing, the defendant's only remedy was by motion to
dismiss the bill for want of prosecution. It was the plaintiff’s
duty, after demurrer or plea, to set the cause down for argu-
ment or take issue on the plea; after answer to the bill and
interrogatories, and the same held sufficient, to set the cause
down for hearing on bill and answer, to reply, or to amend
should the answers make amendment necessary; after replica-
tion, to serve a subpoena to rejoin, to obtain, when necessary,
a commission to examine witnesses, have it executed and re-
turned, to have rules to produce witnesses, to pass publication,
to set down the cause for hearing, and serve a subpoena to hear
judgment. The several periods limited for the performance of
these duties were fixed by general orders, and on default by
the plaintiff the defendant might move to dismiss the bill for
want of prosecution. If, however, after notice of this motion,
the plaintiff made good the default or undertook to speed the
cause by taking the next step required, or if upon hearing he
satisfied the court that he had used due diligence and was rea-
sonably entitled to further time, the motion was dismissed.
With the abolition of most of this cumbrous machinery,
and the adoption of rules simplifying the practice, the reason
for the motion to dismiss for want of prosecution has largely
if not wholly disappeared. The defendant is no longer obliged
to wait the plaintiff’s motion at any stage of the proceedings,
1 A motion to dismiss is never a *When it is not allowed. Stokes
proper mode of testing the sufficiency v. Little, 65 Ill. App. 259; Bates v.
of a bill. It is a proper mode of ques- Skidmore, 170 Ill. 233; Kempton v.
tioning the complainant's right to file Burgess, 136 Mass. 192. *
'a bill of the nature of the bill in ques- -
tion. Grimes v. Grimes, 143 Ill. 550.
§ 666.] Law of Actions. 1127
but may either take or require the plaintiff to take any step
necessary to expedite the cause. The motion to dismiss for
want of prosecution, having been superseded by more effective
remedies, has practically become obsolete. By the English
practice, the motion to dismiss was merely for the purpose of
expediting the proceedings of the complainant; and there is no
ground for such an application on the part of the defendant
where either party is at liberty to proceed in the cause."
Pleas—Several Kinds.--Pleas in equity like those at law
are either dilatory in their character or they are pleas in bar;
that is, the former show matter in abatement or suspension of
the action or question the jurisdiction of the court, while the
latter interpose some new fact not mentioned in the bill as a
reason for defeating the plaintiff’s cause on the merits.”
Questioning the Sufficiency of Pleas.-Under the strict chan-
cery practice a demurrer is proper only to a bill; and while
it would seem that a demurrer ought to be allowed to dilatory
pleas, the practice has been not to allow a demurrer, but to re-
quire that the plea be set down for argument, and the same
practice applies to a plea in bar.” -
The strictness of the ancient practice, however, is greatly
relaxed in all the jurisdictions except the federal courts, and in
the code states entirely changed."
Motions ºn Chancery.—A chancery case is speeded on its
course by means of motions and rules.
A motion in chancery is a written request in the form of a
motion to the court that the opposite party be required to do
this or that, or that something be done in the case.
A motion amounts to nothing unless called up and presented
in open court; the mere filing of a document which might, if
presented in Open court, constitute a good motion, is a nullity.”
Jºules nisi are frequently granted during the pendency of a
case that a party do this or that or show cause why, and these
are then called rules nisi. Everything done in a case is done
on the order of the court after rule entered. The practice in
chancery is adapted to the taking of such steps pending the
1 Whitney v. Mayor, 1 Paige, 548. 4 Id.; ante, p. 1124.
* Lubé's Eq. Pl. 187 et seq.; Story’s 5 McCormick v. Flaherty, 123 Ill.
Eq. Pl., $705 et seq.; Andrews’ Steph. 525; Thompson v. Wooster, 114 U. S.
Pl., p. 136. 111. t
* Lester v. Stevens, 29 Ill. 155.
1128 LAW OF ACTIONS. [$ 666.
suit as will preserve the interests of the parties and keep alive
all rights until the final hearing and decree.
Defaults.-In law cases, when a defendant ignored the pro-
cess to appear, he was said to be in default, and a judgment
was taken against him; but decrees without appearance and
answer were originally unknown in chancery, it being the
theory in that forum to act only on hearing, and to compel
appearance and answer."
Defaults were introduced into the chancery courts in anal-
ogy to the practice at law,” and a decree pro confesso is now
entered where the defendant fails to appear and plead, his en-
tire failure to answer being treated as a confession of the bill.”
J/earing the Case.—After settling the issues the case stands
for hearing. It might be on an issue taken on a plea, or the
case may be set down on the bill and answer without evidence.
Jury Trial.—Where the case is regularly at issue on bill,
answer and replication, an issue may be framed to be tried by
a jury.* .
The verdict of a jury in all cases, excepting the issue devi-
savit vel mon, that is, in contests over the validity of a will,
whether the instrument was a will or not a will,” was merely
advisory and was not binding or conclusive on the court.”
J'éference to Master.—In most cases where there is a hearing
on evidence the case is referred to a master in chancery or
referee to take and report the proofs.
He may be required to report with his findings of fact his
1 Craig v. McKinney, 72 Ill. 814;
Ring v. Bryant, 3 My. & Cr. 191.
2 They were introduced by Stat.
Wm. IV., ch. 36. 1 Spence, Eq. Jur.
375; Thompson v. Wooster, supra.
And American courts followed the
practice. Cairns v. Fisher, 1 Johns.
Ch. 8.
3 The default only admits the facts,
not that they constitute a good Cause
of action. Board v. Smith, 95 Ill.
328. Nor do they admit the dam-
ages. See C. & St. L. Ry. Co. v. Hol-
brook, 72 Ill. 419. A defaulted de-
fendant, unless he has appeared, is
not entitled to notice of further
steps, but he may appear and intro-
duce evidence as to the damages.
C. & R. I. R. R. Co. v. Ward, 16 Ill.
522; Craig v. McKinney, 72 Ill. 314;
2 Dan. Ch. Pl. & Pr. (3d ed.), p. 1115.
4 Lubé's Eq. Pl., § 132. These are
called “feigned issues" because they
are not the real and binding mode
of trial, but are a means taken to
satisfy the conscience of the chan-
cellor where he is doubtful whether
his judgment is correct in a matter
of fact. The defeated party may
move for a new trial, and the chan-
cellor may grant it or he may order
as many as he sees fit. Stace v.
Mabbot, 2 Wes. 552; Johnson v. Har-
mon, 94 U. S. 371; Fanning v. Rus-
sell, 94 Ill. 386.
5 Amte, p. 1085, note 1.
6 Id.
§ 666.] LAW OF ACTIONS. 1129
conclusions on the law and recommend a decree, or simply to
report the evidence back to the court without finding the is-
sues of fact; in that case his function is little more than that
of a commissioner to take evidence."
The finding of a master in chancery who had heard and
seen the witnesses is likewise merely advisory, although appel-
late tribunals, in cases where the credibility of witnesses is
important, indulge a presumption in favor of the findings of
facts of the master over the weight of the finding of the judge
who had not this advantage.”
Master’s Report.—After the master hears the evidence, if he
is to report his findings as to the law or facts or both, the par-
ties are given an opportunity by the solicitors to argue these
Questions, and after argument the master reports.
Objections to the report, questioning the correctness of his
findings of fact or law or both, are then allowed, and these may
be re-argued.”
Jºcceptions to the Report.— After the re-argument of the objec-
tions and the master's findings thereon, either or both parties
who feel themselves aggrieved by the master's findings may
except to his rulings on the objections, and then the case is
ready for hearing before the court.”
Hearing Before the Chancellor."—The final hearing is before
the judge sitting as a chancellor, and if the evidence has been
taken in open court the whole case is heard, argued, and by
the court decided.
If the evidence has been taken by the master the case is
heard on the exceptions to the master's report, and the argu-
ment is confined to the points which have been eliminated by
the previous hearings.
Decretal Orders.--During the progress of a chancery suit the
orders that are made are all in the nature of decrees, but those
matters which are merely incidental and do not adjudicate any
particular right in regard to the merits of the cause are usually
1 Kimberly v, Arms, 129 U. S. 512.
2 Howard v. Scott, 50 Vt. 48; Whit-
comb v. Duall, 54 Ill. App. 650.
32 Dan. Ch. Pr. (4th ed.), p. 1316,
note 4.
* Some controversy as to the cor-
rect practice in such cases arose in
the Illinois courts, and this occa-
sioned a thorough examination and
settlement of the practice in McMan-
non v. C., D. & V. Ry. Co., 167 Ill. 394,
where the ancient authorities are re-
viewed and the practice explained.
5 The hearing on demurrer is a trial.
Hobart v. Illinois Cent. R. Co., 81 Fed.
Rep. 5.
1130 LAW OF ACTIONS.
[š 667.
called orders, whereas if a right is determined finally the order
which is written up is more formal and is called a decree."
Decrees.— These decrees are either interlocutory decrees or
final decrees; e.g., in an action of accounting the case is heard on
its merits on the question as to whether there is a liability to
account, and proceeds to a decree that the parties do account;
and in this interlocutory.decree it is directed that the case be
referred to a master to take and state an accounting,” and on
the coming in of this report and argument a final decree dis-
posing of the whole case is entered; but in most cases there is
but one decree, namely, the final decree adjusting the equities
between all the parties, ordering what each is to do and what
each is to receive.”
These decrees operate in personam (against the person), al-
though, as we have seen in some instances, they direct that in de-
fault of the defendant personally performing the decree of the
court, some officer of the court perform it in his name and stead.
SEC. 667. Evidence.—A rational system of evidence is an
essential factor in any judicial system.* It is a desideratum in
any judicial establishment which requires due process of law.”
The object of evidence in civil causes is to produce belief. The
subject-matter upon which evidence will be admitted, or about
1 But some collateral orders may be
final and appealable; e. g., Orders to
produce books, to pay alimony, sub-
mit to examination, etc. Lester v.
Berkowitz, 125 Ill. 327.
2 Such decrees are not final and are
not appealable. Forbes v. Tuckman,
115 Mass. 120; Allison v. Drake, 145
Ill. 500.
3 There may be several decrees final
in the sense that they may all be ap-
pealable at different times. Elyton
Land Co., Ex parte, 104 Ala. 88; Hunt
v. Hunt, 109 Mich. 399.
4 The necessity for an elementary
exposition of the principles and rules
of evidence is almost entirely dis-
pensed with by the very concise
treatise “The Theory of Evidence,”
by Wm. Reynolds, of the Baltimore
bar. The book is professedly based
upon the code of evidence prepared
by James Fitz-James Stephen, and
whiclı constitute the Indian Evi-
dence Acts, and which is known in
America as Stephen's Digest of the
Law of Evidence. Mr. Reynolds, who
is also the editor of Stephen's Digest
of Evidence, has presented the prin-
ciples and rules of evidence in the
more readable style of a text-book,
adding elementary features by stat-
ing the reasons upon which they are
based. The most scientific and schol-
arly treatise is doubtless the more
elaborate one by Professor J. Brad-
ley Thayer, of the Harvard faculty.
5 The importance of an orderly and
settled procedure providing fixed
rules governing the admissibility of
evidence was never made more ap-
parent than in the Dreyfus case,
tried with the French system (lack
of system). The trial of Aaron Burr
for treason, in the federal circuit
Court, shows the Contrast between
the British and American systems
and that of the French republic.
§ 667.] LAW OF ACTIONS. 1131
which belief is material, is determined beforehand by the rules
of pleading. The intimate relation between the subject of
pleading and that of evidence is shown by the following three
rules: .
What is admitted by the pleadings cannot be the subject of
dispute between the parties on trial. -
Proof’ will not be allowed of facts not in issue.”
The material facts must' be proved as alleged.”
Evidence, regarded from the standpoint of the materials or
instruments of proof, may be said to be that which makes evi-
dent, i. e., anything which tends to convince the mind of the
existence or non-existence of some particular thing.
Evidence, or the law of evidence, as descriptive of a subject-
matter, in legal nomenclature is much wider and includes the
methods of handling evidence by the tribunal — indeed, every
means which may be resorted to in order to arrive at belief."
Juries are frequently instructed that they may test the weight
and value of the testimony by their own knowledge and expe-
rience in affairs of life.”
The law of evidence is sometimes said to be a part of the
law of procedure, but from a broader, standpoint much of the
law of evidence is substantive law.” -
The development of the present system of evidence coincides
very nearly with the development of the system of pleading
which lies at the basis of our various systems, and which re-
Sulted in the establishment of the modern system of trials of
specific issues. The fact that the hearing is before a single
1 Evidence may be heard of any of September 24, 1789 (1 U. S. Stat.
relevant fact.
*Allegata et probata (the evidence
must correspond to the allegations,
and refer to the point in issue) is a
rule of evidence as well as of plead-
ing.
3 Id.
41 Wilson’s Works, 480.
5 Oil Co. v. Van Etten, 107 U. S. 334.
° E. g.: It is a rule of constitutional
law that no eac post facto law shall
be passed. A law which changes
the law of evidence may fall within
this inhibition. Kring v. Missouri,
107 U. S. 221. “Under the thirty-
fourth Section of the Judiciary Act
at Large, 92), which provides that
‘the laws of the several states, ex-
cept where the constitution, treaties
or statutes of the United States shall
otherwise require or provide, shall
be regarded as rules of decision in
trials at common law, in the courts
of the United States, in cases where
they apply,” the law of a state allow-
ing a party to a suit to be examined
as a witness on his own behalf is a
rule of decision to guide the judg-
ment, and not a rule of practice, and
must be adopted as a rule in this
court.” Dibblee v. Furniss, 4 Blatchf.
262.
1132 IAW OF ACTIONS.
[$ 667.
judge, or a number of triors, called jurors, is not the keynote
to the system.
The ancient jury trial had little connection with the modern
system of trial by evidence, and bears no resemblance to the
modern jury trial.
The fundamental principle of modern trial evidence is the
regard that is paid to the logical relation of cause and effect
between different facts, and a regard for a wise public policy
and general convenience, which experience has shown must
set limits to the extent of the inquiry and the means of prose-
cuting it."
It neither requires nor permits any mere physical, arbitrary
tests.
The number of the triors, the unanimity of verdict, is insig-
nificant compared with the all-important requisite of a modern
investigation of questions of fact. -
The present mode of inquisition, however and wherever con-
ducted, is essentially a trial by evidence.
The basis of the system, then, is a rational theory adopted to
accomplish the end sought, namely, belief as to issues joined
between the parties.
Classification of Rules.—It must not, however, be under-
stood that all of the rules of evidence are mere logical deduc-
tions. The rules of evidence may be classified as of two sorts:
First. The logical rules, and these are nothing more than the
result of processes which would naturally suggest themselves
to any reasoning person, irrespective of whether the inquiry
was in a judicial tribunal or otherwise.
Second. Such rules as are said to be based on public policy.
They are arbitrary rules supposed to be conducive to the safety
of the public and security of individuals. An example of the
latter is the exclusion of parties to law-suits, which was for-
merly the rule; so, also, the rule in some jurisdictions” that a
party to negotiable paper, who has given it currency by his
1 Upon this latter foundation rest
all the constitutional safeguards;
e. g., against unreasonable seizures
and searches (Counselman v. Hitch-
cock, 142 U. S. 547; People v. Forbes,
38 N. E. Rep. 303), no one shall be com-
pelled to criminate himself, etc.
*The very fact that many states
will not allow the rule shows that
the policy is arbitrary, and this illus-
trates the truth that many of the
rules are also arbitrary; that is, one
set of men would reject what an-
other adopts. . -
§ 667.] IAW OF ACTIONS. 1133
signature, cannot be heard to testify to anything which would
impair its validity in the hands of an alleged innocent pur-
chaser."
Jegislative Control Over Rules of Evidence.—The power of
the legislature to change many if not most of the rules of evi-
dence is everywhere admitted.” So the grounds of admissibility
and competency are constantly changing, and it is not uncom-
mon for the legislature to say what shall be conclusive and
what prima facie evidence of a given fact.”
Universality of General Rules of Evidence.—So far as the
rules of evidence depend upon reason and logic, they will nat-
urally be very nearly uniform throughout those communities
regarding the same fundamental principles of law, and having
similar systems of administering justice.* - -
“However widely may differ different codes in matters of
arbitrary, positive institutions, the general modes of investigat-
ing the truth of contested facts must be common to all, and,
generally speaking, the principles of the law of evidence are
of universal application, alike to law and equity, to civil and
criminal procedure.”
Pranches of Subject—Jºelevancy and Proof–Slight reflec-
tion upon the modus operand of hearing and determining ques-
tions suggests that aside from the ultimate facts in issue many
other collateral facts rendering the existence of these control-
ling, material facts probable or improbable must be inquired
into. In fact in many if not most cases there will be no wit-
ness or direct evidence to the main fact in controversy, and
these collateral facts, called collateral circumstances, are the
only matters which can be brought forward. -
By what means the facts which may be heard shall be com-
1 One can see, in this latter case, that
the witness excluded may be entirely
unimpeachable, and his testimony
in that view of the matter may be
Conclusive; but on the ground of pub-
lic policy, in order to protect nego-
tiable paper, the arbitrary rule of ex-
clusion prevents hearing what would
give a satisfactory solution of the
question in issue by a witness who,
in the nature of things, is fully
Cognizant of the facts. See Sweeny
v. Easter, 1 Wall, 173; Dewey v. War-
riner, 71 Ill. 198; 12 Am. Rep. 93, note.
See also remarks in Reynolds’ Steph.
Dig. Ev. (3d ed.), art. 1100, and note,
p. 256b.
2 Howard v. Moot, 64 N. Y. 262.
8 Penn. Ry. Co. v. McCann, 54 Ohio
St. 129.
4 The proof of cases is governed by
the law of the place of trial, and not
by the law of the place where the
cause of action accrued. Richmond
& D. Ry. Co. v. Mitchell, 92 Ga. 77.
5 Warren's Blackstone (2d ed.), 563.
1134 LAW OF ACTIONS.
[$ 667.
municated or made known to the triors is a matter distinct
from what may or must be shown. .
The rules which regulate the manner of obtaining and intro-
ducing the testimony and proof constitute the practice in ref-
erence to the evidence, and at this point the rules of practice
and evidence coincide. - : -
The rules which determine these matters constitute the
branches into which the subject of evidence may be divided.
That is, the subject of evidence may be divided into the Rules
of Relevancy, the Rules Regulating the Instruments of Proof,
and the Practice as to the Evidence." t
Relevancy is the connection which a fact offered to be proved”
bears to the fact in issue,” or any other material and relevant
fact, as constituting a cause or effect of either the fact in issue
or some other relevant fact whereby the existence or non-
existence of the fact in issue or other material fact is rendered
certain or uncertain, probable or improbable.”
It is quite plain that any fact which relates to the disputed
fact is in a broad logical sense relevant, that is, it relates to it;
and if that were all there was to the question, one would simply
inquire whether the fact offered to be proved related to the fact
in issue, and logically or reasonably affected its existence or
non-existence. \
“A transaction is a group of facts so connected as to be re-
ferred to by a single legal name, as a crime, a contract, a wrong,
or any other subject of inquiry
which may be in issue.”
1 See Reynolds’ Theory of Evidence,
p. 4.
* Relevancy is always discussed as:
to a fact offered to be proved.
3Fact in issue means all facts which
by the form of pleading in any action
are affirmed on one side and denied
on the other. Stephen’s Dig. Ev.,
art. 1.
4 “The word relevant ’means that
any two facts to which it is applied
are so related to each other that ac-
COrding to the common course of
events one either taken by itself or
in connection with other facts proves
Or renders probable the past, present
Or future existence or non-existence
of the other.” Reynolds’ Steph. Ev. 5.
The necessary connection need not
be, as an element in the transaction
in question, the res gestoe; but if a.
disconnected fact throws light on
the motive or preparation for, or the
intent with which an act is done, it
is legally relevant, and if of sufficient
force may be material. Reynolds’
Steph. Dig. Ev., art. 7; Peabody v.
Dewey, 153 Ill, 657; Thompson v.
Bowie, 4 Wall. 463. If linked together
in Some way they may be legally
relevant. Reynolds’ Steph. Dig. Ev.
(3d ed.), p. 203. .
5 Story & Isham Co. v. Story, 100
Cal. 30; Craft Ref. Co. v. Quinnipiac
Co., 63 Conn. 551. See post, p. 1153.
§ 667.] LAW OF ACTIONS. . 1135."
“Every fact which is a part of the same transaction as the
facts in issue is deemed to be relevant to the facts in issue,
although it may not be actually in issue, and although if it
were not part of the same transaction it might be excluded as
hearsay.” .
Zogical and Zegal Relevaney Differ.—The law does not ex-
tend the range of investigation to so wide a scope, and it is this
limit of admissibility, or, in other words, the rules of exclusion,
which make up the first branch of the law of evidence, namely,
relevancy. It has been well said “that what is logically rel-
evant is legally so, unless excluded by some principle or some ar-
bitrary rule.” . . -
* The subject of relevancy is made up chiefly of the rules of
exclusion. The law of relevancy does in some instances work
by way of inclusion, and brings unconnected facts within the
range of legal relevancy.” . -
* Materiality.— By immateriality is meant a fact which, al-
though it may be relevant, is nevertheless so distantly con-
nected with the fact in issue, or some relevant material fact,
that it cannot reasonably be said to have any perceptible or
material effect upon such facts as a cause or effect; that is to
say, it is too remote."
Competency relates to the adaptability of an instrument of
proof, generally or at the particular stage in the proceeding
when the question arises, whether it consist of oral evidence,
documentary proof or a witness. -
The practical utility of observing the distinctions between
competency, materiality and relevancy consists in this: that on
the trial the party offering the proof, when it is objected to on
the ground of irrelevancy and immateriality, has the burden
of showing its relevancy and materiality, and consequently
opens and closes the discussion if any is required on the point;
whereas in the case of incompetency of witnesses at least, and
1 Reynolds’ Steph. Ev., 7. . 4 The judge may exclude evidence
| ? Thayer's Cas. On Evidence, Intro- of facts which, though relevant or
duction, p. 2. Prof. Thayer very deemed to be relevant to the issue,
properly adds that the law of evi- appear to him too remote to be ma-
dence is the creature of experience terial under all the circumstances of
rather than logic. Id. . . the case. Lucas v. Brooks, 18 Wall.
* Reynolds’ Steph. I)ig., art. 10; 436; Reynolds’ Steph. Dig., art. 2.
Peabody v. Dewey, 153 Ill. 657. -
72
1136 . LAW OF ACTIONS.
[š 667.
generally speaking of all instruments of proof, the party ob-
jecting has the burden of showing why he considers the par-
ticular instrument or witness incompetent, and he opens and
Closes the discussion."
Objections should be specific wherever the objection is such
that if insisted upon it could have been obviated had it been
pointed out.” : -
The Res Gestæ.—In the law of evidence the transaction” out
of which grows the dispute or cause of action is called the res.
gestaº (thing in development), and naturally all such facts as
form one connected transaction or event must have a continuity
and connection as of cause and effect, and must be relevant.*
A transaction, whether it consists of a devolution of title or
an extended course of dealing, embracing perhaps years of time
and many acts and words, or consists of a mere casualty, occu-
pying a very brief space, the res gestae is completed, and what-
ever is said by those concerned in the transaction or casualty
is mere hearsay, or an admission, depending upon whether the
person speaking is one of the principal and a party, or partici-
pated in the transaction or accident as an agent.”
It follows that any act or declaration which falls within the
description res gesta, that is a part of the development of the
facts constituting the cause of action, is admissible, although
they may be mere hearsay; but unless a fact is a part of the
zes gesta, it cannot be admissible in evidence ‘unless it is rele-
Vant in the sense above intimated, or is an admission.
1 Best's Right to Begin, p. 37, note.
*If these distinctions between rel-
evancy, materiality and competency
are borne in mind, the practitioner
would be able to state and argue his
objections more intelligibly. It is
very common to object to what is
offered because of irrelevancy, im-
materiality and incompetency, with-
Out discriminating which of the
three is really the correct ground of
Objection. If the evidence is rele-
vant, but too remote, it should be ob-
jected to on the ground of immateri-
ality; if it is irrelevant it should
not be objected to because of incom-
petency; and incompetency should
Only be used as a ground of objection.
where, however relevant a fact of
fered to be proved may be, the instru-
ment of proof is not at the time of
the offer a proper one. So where a,
#. g $º &
variance could be easily obviated.
the objection should be placed on the
ground of variance. People v. Brand-
reth, 36 N. Y. 191; Hartford Fire Ins.
Co. v. Olcott, 97 Ill. 477.
8 Robinson v. James, 29 W. Va. 224.
4 Reynolds' Theory of Ev. 8; Mont-
gomery v. Brush, 121 Ill. 523.
5 Starkie on Ev.*86–89, note; Spring-
field Ry. Co. v. Welsch, 155 Ill, 51;
Tolbert v. Burke, 89 Mich. 132.
§ 667.] LAW OF ACTIONS. . 1137
Hearsay evidence, by which is meant the testimony by a per-
son testifying of what another person not testifying said, is
never admissible, except that the expression of the third person
is a part of the res gestab. - -
The general logical principle of exclusion is based upon an
ancient maxim, which, however venerable it may be, and just
though it is, must not in all cases be literally applied: “Jºes.
inter alios acta, alter nocere non debet ’’—a transaction between
two parties ought not to operate to the disadvantage of a
third — one person ought not to be affected by an act to which
he is not a party. - f
The maxim is just, and an accurate guide if the idea that
all of the incidents of the res gestab must be taken to affect
every person who connects himself with the transaction or
title, irrespective of the time when his privity or connection
arises." 3.
Legal relevancy, which, as before indicated, is but another
name for a limitation or an extension of the admissibility by
reason of its being logically relevant, excludes from considera-
tion in a given case all such matters of fact which, though they
may relate to the fact in question, are so remotely and slightly
connected there with as not to constitute a probable cause for
the fact or act in question, in which case they are said to be
immaterial.” . . . . .
Whether a given fact is sufficiently near, or too remote to be
practically considered as a cause and effect, is a question for the
judge, and therefore calls into exercise the personal discretion
of the judicial officer, and this element precludes any exact ar-
bitrary rule. What one man may consider too remote, another
may consider sufficiently near.” - . # -
1 The criticisms of this maxim by
Stephen (Reynolds’ Steph. Dig., note
vi to art. 10) are based upon a rather
narrow view of the word transaction,
and “to which he is not a party.”
When one links himself with a trans-
action, he takes it as it is, and all
acts by whomsoever performed af-
fect him; he is not any longer a third
party. When he takes a title to
land or goods, he becomes privy to
all former mutations through which
it has passed. This is the reason why
declarations of parties in possession
explanatory of the character of the
possession are admissible, irrespect-
ive of when they are made. 1 Greenl.
Ev., § 109 et seq.
2 Reynolds’ Steph. Dig. Ev., art. 10.
8 Reynolds’ Steph. Dig. Ev., art. 3.
See Butler v. Manhattan Ry. Co., 143
N.Y. 417; 42 Am. St. Rep. 738; Thomp-
son v. Bowie, 4 Wall. 463.
1138 LAW OF ACTIONS. [$ 667.
The question also arises where similar but unconnected facts
have taken place, and it is desired to show the one which has
happened in order to render it probable that the other did hap-
pen or may have happened." -
Proof.-The other branch of the law which determines the
instruments or media of communicating the facts to the trial
tribunal is called proof, and includes the rules of competency
and incompetency of witnesses, documents and Oral testimony,
and the grades of evidence.” -
In regulating the means or instruments by which proof shall
be made, it is first provided that no proof need be offered of
certain facts generally well known to exist, or of such a nature
that the tribunal must know of their existence.
In other words, there are certain facts of which the court
will take judicial notice, and these need not be otherwise
proven.
In the practical application of this rule some facts need not
be even mentioned in order that they shall be observed by the
court; as, the laws of the state or the constitution of the United
States. -
Other facts, though of a nature which the court will notice
judicially, must be called to the attention of the court.”
Grades of Proof-The first rule as to the quality of evidence
which shall be produced is that the best evidence of the fact in
question must be produced.”
If the fact is one evidenced by a public record, it cannot be
proven in the first instance between the parties to it by a mere
written document, or by the testimony of one of the parties.”
A contract which is in writing cannot, as between the parties
to it, be proved by Oral testimony, unless it is shown that the
written evidence of it is not accessible."
Primary and Secondary Evidence.— In such cases the written
document is termed primary evidence, and the oral account of
it would be secondary evidence. This rule, however, only ap-
plies between parties to the transaction;' and where such a fact
1 Id.; Peabody v. Dewey, 153 Ill. 5 Carbine v. Morris, 92 Ill. 555; Mc-
657. Intyre v. People, 103 Ill. 148.
2 See post, “Primary and Secondary 6 Coonrod v. Madden, 126 Ind. 197.
Evidence,” p. 1138. 7 Julliard v. Chaffee, 92 N. Y. 534;
* In re Duncan, 139 U. S. 449, Needles v. Hanifan, 11 Ill. App. 303.
* Reynolds’ Steph. Dig. Ev., art. 90.
§ 667.] LAW OF ACTIONS. 1139
arises between third persons, one desiring to prove the fact is
not obliged to produce the original or account for its disposi-
tion, but may prove the desired fact in any proper manner,
being obliged, however, to use the best evidence which is:
within his control. Nor does it apply to documents not in
issue, but collateral thereto." What is primary and secondary
evidence can only be stated with relation to specific subjects or
instruments of proof. A written document is not always better
than oral proof.” Nor are all kinds of writings within the rule,
e.g., memoranda of sale, receipts, etc.;” but the document must
be of a dispositive character, or be a contract.” :
Competency of Witnesses.—Among the logical rules govern-
ing the competency of witnesses is that the witness offered shall
be of such mental capacity as to be entitled to credence; that is
to say, if from extreme youthfulness, or from any mental dis-
turbance, it is plain that the witness cannot testify understand-
ingly, his testimony will not be received.
Here again the discretion of the court is called into play, and
there is no arbitrary rule which can be applied from the mere
logic of the situation. It is competent for the legislature to fix
the age of capacity, and the general usages of the common law
have to a certain extent regulated this subject.
Aside from the question of mental capacity, the rules of ex-
clusion are arbitrary, although they may be supposed to be based
on a sound public policy and supported by good reason.
Public policy in such cases, as in all others, is a relative, in-
exact standard, depending upon the views which may be enter-
tained at a given time. •
Parties and those Interested.— Until a comparatively recent
time parties to the record and interested parties were excluded:
11 Whart. Ev., §§ 76, 78; Hewett v.
State, 121 Ind. 245; Coonrod v. Mad-
den, 126 Ind. 197.
2 W. U. Tel. Co. v. Cline, 8 Ind.
App. 364.
* The reason is clear enough once
it is appreciated. If the giving of a
receipt was the fact in question, the
receipt would be the best evidence,
ſi. e., primary; but if the payment or
delivery is the fact, then the writing
is only a recital; but in case of con-
tracts the document is, in the absence
of fraud, regarded as the act or fact
in issue. Stackpole v. Arnold, 11
Mass. 27; Hunt v. Adams, 7 Mass.
518; Keith v. Mafit, 38 Ill. 305. Cf.
Baum v. Parkhurst, 26 Ill. App. 128,
and Murray v. W. W. Kimball Co., 10
Ind. App. 184, with Ware v. Allen, 128
U. S. 590; Mr. Reynolds’ note to Reyn-
olds’ Steph. Dig. Ev. (3d ed.), 256.
*Id.; McCrea v. Purmont, 16 Wend.
460.
1140 LAW OF ACTIONS.
[$ 667.
on the ground of public policy;' but at the present time it is
regarded as better policy to allow even interested witnesses
to testify, submitting to the jury the effect their interest may
have upon their credibility.”
So, likewise, it is still considered impolitic to allow husband
and wife to testify for and against each other, except in a few
special cases, and formerly parties could not testify.” -
The modern rules are in all these instances regulated by stat-
utes, and these must be looked to in each state for the specific
rule governing the special instance. -
Construction of these Statutes.—In construing these statutes
it is important to observe the grounds on which they have re-
moved the disabilities, in order to determine whether all have
been removed.*
A statute removing a disquakification, which was based upon
the fact of the witness being a party to the record, would not
affect his disability based on his interest, and the removal of
disqualification on the latter ground would not extend to a dis-
Qualification which was formerly based upon public policy.”
Privileged Communications.— British jurisprudence was al-
ways tender of the ties of honor and kinship, and sought to
avoid compelling one to violate them. These principles were
carried so far that it became a constitutional provision that no
one should be compelled to give evidence against himself in a
criminal case. The same principle dictates the rule against un-
reasonable seizures and searches, by which one cannot be com-
pelled to allow others to inquire into his private affairs."
Practice in the Production of Evidence.—Witnesses whose
attendance is desired are compelled to attend the court by pro-
1 See peculiar exception in equity
cases. Peirce v. Burroughs, 59 N. H.
512.
2See the various statutes removing
disabilities. g
31 Greenl. Ev., § 334.
4 A very instructive case is Clem-
ents v. Marston, 52 N. H. 31.
5 Id.; Dewey v. Warriner, 71 III.198.
6 Counselman v. Hitchcock, 142 U.S.
547; Newberry v. Carpenter, 107 Mich.
567. Compelling a person to disclose
his possession of any property in his
hands belonging to a decedent's es-
tate, or his knowledge of any such
property, on penalty of imprisonment
for refusal, is held, in Levy v. Superior
Court of San Francisco, 105 Cal. 600,
to be lawful in a remedial, as dis-
tinguished from a penal proceeding;
and this is held not to infringe the
constitutional protection against un-
reasonable searches and seizures, or
making one a witness against him-
self.
$ 667.] LAW OF ACTIONS. & 1141
cess called subpoena, which is a paper attested by the court,
commanding the witness to appear. -
... This is a direct command from the court to the witness, and
may be communicated to the witness in any manner, and need
not be served upon him by an officer or a party. -
A subpoena duces tecum is a subpoena commanding the wit-
ºness to appear and have with him in court some document,
book or paper containing documentary proof. - -
The power of the court to compel the production and inspec-
tion of documents, books or papers is limited by the rules of
public policy, some of which have become constitutional safe-
guards. -
Swearing witnesses is done in two ways: on the voir dire, to
answer questions touching their competency as witnesses, and
this is a question which addresses itself to the court.
When the witness is found to be competent he is sworn or
affirmed to testify in the case. -
Direct Epamination.— The party producing the witness ex-
amines him first, and this is called the examination in chief.
Leading questions should not be put on the examination in
chief, except for the purpose of directing the attention of the
witness to a general subject. |
A leading question is one which in any manner Suggests to the
witness the answer which the questioner desires." -
The cross-examination is an interrogation of the witness by
the opposing party, who is allowed great latitude both as to
the mode and scope of the inquiry, though in general the scope
must be confined to the subjects brought out on the direct ex-
amination. - -
Leading questions may be asked and every means resorted
to to test the credibility of the witness. -
The cross-examiner should himself be cautious in extending
the scope of his inquiry beyond the subjects brought out in the
direct examination, because a party is concluded by the an-
swers of a witness put to him on a cross-examination extended
beyond the scope of legitimate cross-ealamination and collateral to
the ºssue.”
11 Greenl., § 434. Simply because it 2 In order to conclude, both these
may be answered by “yes” or “no’’ elements must be present. Hebbard
is not a test. Id. v. Haughian, 70 N. Y. 61; C., R. I. &
1142 LAW OF ACTIONs. [š 667.
Objections to the competency of witnesses or instruments of
proof should be taken at the time the offer to prove is made,
and if the objecting party desires to perfect the record for use
in the appellate tribunals, adverse rulings should be excepted to.”
Specific objections communicating the precise ground of ob-
jection should be taken in all cases where a specific objection
would enable the opposite party to make his proof by resorting
to other competent evidence, and in such cases general objec-
tions will not avail on a motion for a new trial, or in the appel-
late tribunals.” . . .
Privilege of Witnesses.—Witnesses are protected against crim-
inating themselves, and therefore the witness is not obliged to
indirectly do what he cannot be directly compelled to do; and
if a witness testifies that he fears if he should answer the ques-
tion it will tend to Incriminate him, he will not be compelled
to anSWer. - -
Jeedirect examination is permitted by the party offering the
witness for the purpose of allowing the witness to explain what
he may have said on the cross-examination, and the court has
a wide discretion in allowing further examination where coun-
sel has overlooked a fact which he desired to bring out. .
The burden of proof, or onus probandi, is the obligation of
proof which rests upon a party who asks the court or jury to
decide an issue of fact in his favor. --
The onus probandi is determined in the first instance by the
state of the pleading, and rests upon the person who has the
substantial affirmative of the issue,” and is only satisfied by the
production of such evidence and such a quantity of it as makes
out a prima facie case; i. e., evidence tending to prove all the
material facts, and of such a weight as would warrant a ver-
dict in his favor if nothing further was heard.” :
Shifting of the Burden of Proof- It is sometimes said by
theorists that the burden of proof never shifts, while others as-
sert the contrary; but, as in many logical disputes, the prac-
tical point is lost sight of, which in such cases is not so much
P. R. Co. v. Bell,70 m. 102; 1 whart. "Libby, McN. Co. v. Scherman, 146
Ev., §§ 551–55; 1 Greenl. Ev., § 448; Ill. 542. - . . . .
Com. v. Farrar, 10 Gray, 6; Hollen- 3 Best’s Right to Begin and Reply,
back v. Todd, 119 Ill. 543. p. 14. - ... r _* .
, Hollinsworth v. Koon, 117 lil. 511. Farmers' L. & T. Co. v. Seifke, 144
* . . . . . . . . . . . . N. Y. 354. . . . . .
§ 667.] Law of Actions. 1143.
the theory as the practical situation confronting the parties.
and how to meet it. - *
By shifting of the burden of proof is meant that at a certain
stage in the proceedings, when one contending party has offered
sufficient proof that the trial judge would submit the evidence
to a jury as sufficient to warrant a verdict, or will himself weigh
it for that purpose, it behooves the other party to bring in proof
to repel the inference which may be drawn from the evidence
already in, and in this practical sense the burden of proof shifts
whenever the equilibrium is so disturbed that nothing is left
between a conclusion which might be drawn from the evidence
already heard and the ultimate fact in issue."
The quantity of proof depends upon the character of the
case and the character of the issue.
In criminal cases the ultimate fact of guilt must be shown
beyond a reasonable doubt; that is to say, so clearly that a rea-
sonable man would not hesitate to act in the most serious af-
fairs of life.” -
To constitute proof beyond a reasonable doubt it is not nec-
essary that the proof amount to a mathematical or moral cer-
tainty, or exclude all possible hypotheses, but it must exclude
all reasonable ones.” • ‘ r
In civil cases a preponderance of the evidence is sufficient,"
excepting, however, that in some jurisdictions, where a crim-
inal charge is directly alleged and denied in the pleadings, it
is required that such an issue shall be established beyond a
reasonable doubt;" although in most jurisdictions, where the
question arises incidentally and collaterally because of the rel-
evancy of the fact in question, a preponderance is all that is
required." - -
Balancing probabilities, then, is in most cases the extent of
certainty which can be attained or is required in civil cases,
1 Nickerson v. Ruger, 76 N. Y. 280; 612) or to have a clear conviction.
Starr v. Peck, 1 Hill (N.Y.), 270; Best's, Hoener v. Koch, 84 Ill. 408.
Right to Begin, p. 14; Farmers’ L. & 5 There is conflict in the rule as to
T. Co. v. Seifke, 144 N. Y. 354. the subject. See Reynolds’ Steph.
*1 Greenl. Ev., § 13a, note. Dig. Ev., art. 94, notes; Germania.
3 Id. Ins. Co. v. Klewer, 129 Ill. 599; Jones,
4 Herrick v. Gary, 83 Ill. 86. The v. Greaves, 26 Ohio St. 2.
Jury should not be required to be 6 Id. -
satisfied (Graves v. Colwell, 90 Ill.
1144. LAW OF ACTIONS. [$ 667.
and the issue must be decided in favor of the one whose con-
tention under all the evidence shows the greater degree of
probability; and a learned author on circumstantial evidence
has not hesitated to decide that civil transactions of men must
generally be determined on probabilities." ---
Presumptions.— The experience of men in the ordinary af-
fairs of life indicates that most persons will act similarly under
similar circumstances. This has given rise to the idea that it
is natural for a man to do thus and so, and the natural effect
or consequences which attend a known fact are in the modern
system of evidence allowed as a means of raising an inference
as to the probable existence of a fact not known which is in
issue, or material to the fact in issue.”
The doctrine of presumption is universal in all courts, and is
one which is as obligatory upon the court as is the duty to con-
sider evidence not merely presumptive in its character. A
court has no right to ignore the presumptions in a given case
which work for or against the parties.” -
The Presumptions Operate as a Part of the Proof–Pre-
sumptions, however, are generally indulged only in the absence
of proof, for there is no occasion for indulging presumptions
as to matters which there is a better means of proving; * but
where the inference is as to innocence and rectitude, it acts
with the other evidence.
Circumstantial Evidence.— The rules or doctrines of pre-
sumptive evidence are very closely associated with what is
called circumstantial evidence, because circumstantial evidence
depends for its operation and effect upon an inference from a
known fact as to the existence of an unknown one.
Classes of Presumptions.—The proof of some facts requires
the finding of some other fact as a legal conclusion from the
fact proven. This is what is meant by legal presumption.”
A presumption of fact is one which leaves the inference un-
certain and discretionary with the trial tribunal.
I Burrill's Pre. Ev., pp. 23 and 81; Russell v. Baptist Union, 73 Ill. 337.
Rex v. Burdett, 4 B. & A. 95. In this case an independent fact was
2 Jackson v. Warford, 7 Wend, 62; presumed, viz., authority to sign a
Kirby v. Tallmadge, 160 U. S. 379. name rather than allow an inference
8 New Orleans v. United States, 10 of forgery. Case v. Case, 17 Cal. 598;
T^et. 721. Brandish v. Bliss, 55 Vt. 326.
4 Gannon v. Ruffin, 151 Mass. 204; 5 Reynolds' Theory Ev. (3d ed.), 82.
§ 667.] LAW OF ACTIONS. 1145
Arbitrary presumptions are such as from motives of policy
have been established by the courts or sanctioned by the legis-
lature." 4. -
Such is the presumption of death upon long continued ab-
sence. It has been found necessary to the settling of titles,
the administration of property which is abandoned by the true
owner, or to define the rights of persons related to one who
has disappeared or absented himself, that some period be fixed
When he may be accounted as though he were dead; and al-
though it is not uncommon for people to disappear and live
many years beyond the term of seven years, it is quite gener-
ally presumed that one who has disappeared and not been
heard from for the period of seven years is dead.
Evidence should be weighed by the jury in connection with
these presumptions, and all such presumptions as are arbitrary
should be indicated to them through the medium of the instruc-
tions. -
Presumptions are indulged from the fact of the spoliation of
evidence, or the non-production of evidence which is clearly
Within the power of one or the other of the parties to produce.
Presumptions are indulged in favor of the innocence and
rectitude of parties rather than their culpability. In short,
the doctrine of presumptive evidence rests upon the reasonable-
ness and naturalness of things, excepting in so far as there are
arbitrary rules established excluding these natural presump-
tions.
1 The principles upon which the presumption are always subject to
doctrine of presumptive evidence is change. See Wharton on Ev., § 1234;
based rest in good sense, logic and Reynolds’ Theory Ev. (3d ed.) 82; 3
utility, but inasmuch as the concep- Cooley's Blk, (4th ed.) 371.
tion of things changes, the rules of
PART IV.
tºº
THE LAW OF CRIMES.
CHAPTER XXXII.
CRIMES AND CRIMINAL PROCEDURE.
SEC. 668. The Law of Crimes and Criminal Procedure has
no close relation, logically speaking, to the other branches of
law." It is a distinct part of the corpus juris.
Much of that body of rules called constitutional law relates
to crimes, classification of crimes, and individuals charged with
crimes. The crimes themselves may be classified as those re-
lating to offenses against individuals, offenses against private
property, offenses against public security, offenses against re-
ligion, etc., thus showing that all the departments of the law,
however dissimilar they may be, are yet but parts of one great.
system.
One cannot understand the nature of crimes without under-
standing the law of property, or contractual relations, for in-
stance, that which is technically termed master and servant.
Thus, the law of embezzlement, as distinguished from larceny
at common law, depends upon the nice shades of distinction
in the manner that the person appropriating another's prop-
erty becomes possessed of the same.
The jurisprudence of the United States shows its excellence,
and the effect of a rational civilization, in no part more than
in the laws for the prevention and punishment of crime.
The fundamental principle derived from the British consti-
tution is to regulate the degrees of crime with reference to the
atrocity of the act and the effect upon the public, and inflict-
ing punishment commensurate with the crime.”
Protection to Accused.—The ancillary principle to effectuate
this rule is to establish fixed laws defining crimes, and affixing
1 The desirability of confining this
treatise to a single volume outweighs
the necessity for an elementary ex-
position of the subject, in view of
the Several monographs accessible.
Washburn’s Outlines of Criminal
Law, edited by Marshall D. Ewell.
The fundamental principles of our
Criminal law have never been better
stated than in the lectures of Mr.
Justice Wilson. 2 Wilson's Works,
Part II, p. 337.
23 Cooley's Blk. (4th ed.) 41; 2 Wil-
son's Works, 342.
T150 CRIMES AND CRIMINAL PEROCEDURE. |$ 668.
punishments, and providing a settled mode of procedure, in
order to extend the protection of due process of law to persons
accused of crime. The constitutional safeguards protect the
accused from ea post facto laws, thus securing him a trial ac-
cording to the course of the ordinary law common to all.”
The convicted criminal is still within the pale of the law and
the protection of the constitution, which secures him against
any cruel or unusual punishment.” - .
he subject of criminal law is generally classified in such a
manner as to designate and enumerate the crimes by name and
the elements of the offenses. t
Criminal pleadings, that is, the manner of alleging and charg-
ing offenses, i.e., the elements of criminal indictments, informa-
tions and complaints. - - *
Criminal evidence, that is, the special, peculiar rules which
regulate the proof of the guilt or innocence of the accused.
The Practice in Criminal Cases.—In most states there is a
criminal code which enumerates the Offenses which most com-
monly occur, and these statutes very materially change and
modify the known common-law offenses; so criminal pleading
has been much simplified by statutory enactments, the princi-
pal one being, in substance, that an indictment describing the
offense in the language of the statute creating it,” or in plain
and simple language and in such a manner as to be easily un-
derstood by the jury, will constitute a good indictment; but this
statute is not intended to dispense with the requirement of cer-
tainty in criminal proceedings.
I Kring v. Missouri, 107 U. S. 221.
2 Ex parte Milligan, 4 Wall. 2.
3 In re Kemmler, 136 U. S. 436.
4 Though it is often sufficient to
follow the words of the statute, it is
not so when the statute does not con-
13 Wend. 159. In such cases it is not
sufficient merely to charge the of
fense In the language of the statute.
State v. Campbell, 29 Tex. 44; Com.
v. Dean, 110 Mass. 65; State v. Ab-
sence, 4 Porter (Ala.), 401; Anthony
tain words sufficient to describe the
offense. Herrington v. State, 54 Miss.
490; Jesse v. State, 28 Miss. 100; Sarah
v. State, 28 Miss. 267; State v. Graves,
34 N. H. 514. -
An act which was an offense at
Common law and is simply named in
the statute must be charged in the in-
dictment as at common law. State v.
Beasley, 18 Ala. 535; People v. Enoch,
v. State, 29 Ala. 27; Jackson v. Peo-
ple, 113 Ill. 99.
It is a general rule that indict-
ments upon statutes must state all
the material facts which constitute
the elements of the offense named in
the act, so as to bring it precisely
within it. Com. v. Hampton, 3 Gratt.
531; 1 Bishop, Crim. Pro. (2d ed.), sec.
612; State v. McKenzie, 42 Me. 392.
§ 668.] CRIMES AND CRIMINAL PROCEDURE. - 1151
Criminal pleadings are intended to be very simple and con-
cise, and so much regard is had for the security of the defend-
ant in criminal cases that he is allowed to repel the charge
under the general plea that he is not guilty.
The Plea of Guilty.—If, on the other hand, he desires to
admit his guilt, he is arraigned in open court, admonished by
the court of the consequences of his admission, and is then per-
mitted, but never urged or compelled, to enter a plea of guilty.
The plea of nolle contendere is likewise permitted in a defend-
ant who, seeing that he is so entangled that it will be unavail-
ing for him to struggle against certain conviction, but not
wishing to admit his guilt in such a manner that his admission
may be used in another case, is allowed to plead that he will
not contend against conviction.
The consequences of this plea do not differ from that of
guilty in the suit at bar, but operate in collateral matters much
as an admission under a protestation in a civil suit, to prevent
any inference against him in another case.
73 -
APPENDIX.
THE WINCHESTER REPEATING ARMS COMPANY VS. THE NEW
YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.
Superior Court, New Haven County, the 9th day of February, 1898.
[Reported in Yale Law Journal, Vol. 7 – March, 1898, p. 245.]
STATEMENT OF THE CASE BY THE EDITOR OF THE YALE LAW JOURNAL.
What causes of action may be joined in one count wnder the Connecticut
gractice act.—The following memorandum of decision was rendered by
Hon. Samuel O. Prentice, judge of the superior court, in February, 1898,
and is now on file in the office of the clerk at New Haven.
The action which is now pending in that court is for the loss of goods
shipped by the plaintiff over defendant's railroad. The plaintiff stated in
One count that the goods were delivered to the defendant as a common
carrier at common law; that at the time of the delivery of the goods cer-
tain bills of lading were also delivered to and accepted by the defendant,
but that there was no consideration for the bills of lading, that they were
unreasonable and unjust in their terms, and that therefore they were not
binding contracts, and that the defendant had no right to the limitation
of liability expressed therein. Under these circumstances, the plaintiff
claimed that, in spite of the bills of lading, the defendant was liable as a
common carrier at common law, and alleged the failure of the defendant
to carry and deliver the goods. The plaintiff went on to say that if the
bills of lading were valid, then the defendant was liable because the goods
were lost through its negligence.
Defendant moved to correct the complaint by requiring the plaintiff to
state upon which cause of action it relied, or to separate the causes of ac-
tion. The case was argued at length, plaintiff relying principally upon the
decision of the supreme court of Connecticut in the case of Craft Refrig-
erating Co. v. Quinnipiac Brewing Co. t -
OPINION.
This complaint in one count contains statements of divers facts, some
pertinent to a right of recovery upon one ground, and some upon another.
The plaintiff justifies this combination of allegations in one count upon
the authority of The Craft Refrigerating Co. v. The Quinnipiac Brewing
Co., 63 Conn. 551. - tº -
The question is thus raised as to the scope and effect of this oft-cited case.
By the profession generally it has apparently been received as it has by
counsel for the plaintiff assanctioning as proper pleading the filing in court
as a complaint of any leaf of history between persons which may be said
1154 APPENDIX.
to relate to any single transaction, using that, term in its most comprehen-
sive sense, however varied and many-sided that transaction may be. As
necessary sequels to this manner of pleading it is conceived that the plaintiff
may shift his position as often as he is pleased or forced to do so, as the
Case progresses, as long as he keeps under the cover of any of the aver-
ments of his complaint; that the opposite party and the court are put to
the hazard of searching out at their peril for defense, trial, ruling and
decision, the many causes or rights of action which may be concealed
within its multitudinous allegations, and that the plaintiff has under it a
carte blanche to recover for any cause of action which his opponent shall
fail to discover or successfully defend.
Against such doctrine I must protest as being subversive of the very pur-
pose of pleading and paving the way for all manner of uncertainty, confu-
sion, pleading entanglement and even ultimate injustice. If we have come
to the point where such pleading is permissible we have indeed taken a
long step backward towards that primitive time when parties appeared in
person before the magistrate and told their story in open court, and the
magistrate adjudged as upon the whole seemed to him just and right.
iModern conditions, I fancy, do not admit of such methods.
Phillips, in commenting upon the requirement of the codes for separate
'statement of causes of action, makes the following pertinent remarks:
“Such statement of causes is clearly indispensable to an orderly system
of pleading. In no other way can the legal sufficiency of any one cause be
tested by demurrer; in no other way can different defenses be made to the
different causes; in no other way can separate and distinct issues be made
and tried; in no other way can the introduction of evidence be intelligently
conducted; and in no other way can the record be made clearly to show
what matters have been adjudicated and how decided. The provision for
the joinder of distinct demands in one action is for the convenience and
economy of litigants, and its object may be promoted by liberality in its
application, but the requirement that causes of action when joined shall be
separately stated is to enhance the certainty, the precision and the safety
of procedure, and its object can be promoted only by enforcing it with rea-
sonable strictness.” (Phillips on Code Pleading, sec. 202.)
Such doctrine, however, as that to which I have referred as having been
drawn from the Craft case, I am confident is not supported by that case.
It is doctrine which I believe to be plainly repugnant to the express pro-
visions of our practice act and of all known codes, and I fail to discover
what there is in the opinion in the Craft case, when properly interpreted,
which warrants the conclusions which have been drawn from it.
The doctrine of that case, as I understand it, is simply and only this: that
where a single inseparable state of facts gives rise to two or more rights of
action, or where the plaintiff upon such statement of facts may upon differing
constructions thereof be entitled to differing relief, the complaint in a single
count setting up these facts may, in the first case, entitle him to demand
and have any of the several kinds of relief which the facts in any aspect
of them support, or in the second case to demand alternative relief appro-
priate to the different constructions which the law may place upon the
facts, and have such relief as the true construction warrants.
APPENDIX. - 1155.
There are many states of fact which give rise to more than one right of
action, as, for instance, one in contract, and another in tort. A complaint.
setting up such states of fact may contain matter pertinent to each right.
of action, and no matter not pertinent to both. The Craft Refrigerating:
Company case very properly holds, as I shall have occasion to further no-
tice later, that such a complaint in one count is good, that the plaintiff
may go to trial thereon without electing which right of action he will pur-
sue, and that he may thereunder be given such relief as the facts may war-
rant. -
There, however, may be other conditions, to wit:
1. A count may contain allegations, all of which are appropriate to one
right of action, while at the same time a portion of them are also appropri-
ate to and sufficiently support another right of action, the remainder being
, altogether inappropriate to such second right of action. r - -
2. A count may contain allegations, a part of which are pertinent and
appropriate, and a part impertinent and inappropriate to each of two or
more rights of actions.
With respect to such counts the principle of the Craft case does not apply.
To so hold would be to violate the clear and express provisions of the prac-
tice act. Section 878 of the General Statutes provides what may be joined
in a complaint, and how such joinder may be made. The pertinent require-
ments are (1) that several causes of action may, under certain conditions,
be joined in one complaint, and (2) that such causes of action so joined
must be separately stated.
Another pertinent provision is that which permits the joinder in one
Complaint of causes of action “arising out of the same transaction, or trans-
actions connected with the same subject of action.”
In order to arrive at a correct understanding of what the effect of this
Section of the statutes is, it is necessary to have a clear conception of the
meaning of the terms which it employs, to wit, “right of action,” “cause
of action,” and “transaction.” -
A “right of action” is the secondary right to relief which springs from
the invasion of Some primary right. It is the right to relief appropriate to
the facts from which the right of action springs.
A “cause of action,” on the other hand, to quote the language of Pomeroy,
is the situation or state of facts from which a “right of action” springs,
The facts from which a remedial right—that is, a right to relief—arises
constitutes the “cause of action.”
Phillips, in commenting upon this distinction between a “right of ac-
tion” and a “cause of action,” uses this language: “From the foregoing
definitions of ‘right of action’ and ‘cause of action,” it will be seen that the
former is a remedial right falling to some person, and that the latter is a
formal statement of the operative facts that give rise to such remedial
fact.” (Phillips on Code Pleading, sec. 31.)
A “transaction ” is something quite apart from a “right of action,” and
Something more comprehensive than a “cause of action.” The term is one
which has been seldom defined and to which it is hard to give a definition
helpful in practical applications and suited to all circumstances. Our su-
preme Court in the Craft case, however, has said that a transaction “con-
1156 APPENDIX.
sists of an act or agreement, or several acts or agreements, having some
connection with each other, in which more than one person is concerned,
and by which the legal relations of such persons between themselves are
altered.”
A definition in different language, but to the same general effect, might
be made upon the basis of Pomeroy’s analysis somewhat as follows: “A
single continuous connected proceeding, negotiation, or conduct of business
between parties, characterized by a unity of action and circumstance, and
forming one affair.”
Definitions aside, however, it is certain that from a single “transaction”
several “causes of action ” may arise, each giving to the injured party one
or more “rights of action.”
In this connection it ought to be observed that a “right of action ” is to
be distinguished from the object of the action. The object of the action is
the relief which is sought. The “right of action ” is the right to that relief
which arises from the facts which constitute the “cause of action.” In ac-
tions at law the object, whatever the “right of action” may be, is generally
damages. ſº
A “right of action ” at law always arises from the existence of a right
and the invasion of it by some wrong on the part of another. The “cause
of action” is the facts which establish the right and the wrong. Its state-
ment is therefore only a statement of these facts. Such statement is single
if it sets up only one right invaded by one wrong. It is double if it sets up
either two rights invaded by one wrong or one right invaded by two wrongs.
If now we examine section 878 with these distinctions and principles in
mind, its interpretation becomes clear and its operation simple. Where
there is a single state of facts from which a right to relief arises, there is
but one “cause of action.” A count, therefore, which sets up such a state
of facts, and that only, states but one “cause of action” in the sense in
which that phrase is used respecting the joinder of actions, no matter how
many rights of action may spring from these facts. Of course, causes of
action might be differentiated, not only with respect to the facts averred,
but also with respect to the nature of the relief sought upon the facts. This
narrow distinction, however, is not the logical one, since the prayer for re-
lief is no part of a count and no part of the cause of action. Neither is it
the distinction contemplated by the practice act. The separation of causes
of action is not to be determined by the relief demanded, but by the action-
able facts alleged, from which the right to redress is claimed to flow. Upon
this construction there can therefore be no joinder of causes of action in a
count which sets up a single set of facts, all pertinent to whatever relief
may be demanded upon those facts. Such a count of necessity alleges but
One right and One invading wrong. Such in the opinion of the court was
the single-count complaint in the Craft case. -
If now we turn to counts of the second variety heretofore specified, to
wit, those containing allegations all of which are appropriate to one “right
of action,” while a portion of them are also appropriate to and sufficient to
support another “right of action,” the remainder being altogether inappro-
priate to such second “right of action,” the situation becomes at once and
radically changed, if the plaintiff is permitted to treat such counts as good
APPENDIX. 115'ſ
ones for rights of action to which all their allegations are not appropriate.
In such cases there is plainly a joinder of causes of action. The instant
that there is combined in one count facts appropriate to one cause of action
and facts inappropriate to it, but appropriate to another cause of action,
there arises a joinder of causes of action. This is necessarily so since, as
we have seen, causes of action are only the facts from which rights of ac-
tion spring. A statement of a cause of action being only a recital of facts—
a recital of the facts from which the right of action arises—the conse-
quence is inevitable that wherever there is contained in a count material
allegations inappropriate to a statement of a cause of action therein, but
pertinent and appropriate to another cause of action, there is a joinder of
causes of action, since there is a joinder of facts issuing independently in
different rights of action.
The practical result in such a case should be that the count should be re-
garded as one for the right or rights of action to which all its material
allegations are appropriate, and not one upon which the plaintiff might re-
cover for a right of action to which only a part of its material allegations
are appropriate. Having himself inserted the additional allegations which
give character to the count as one for those rights of action which all its
recitals support, he should be held to have chosen his ground as he has
stated it, and not permitted to change it by treating his own material aver-
ments as surplusage. Such a count, under such an interpretation, would
not contain a joinder. It would be simply a count for a single cause of
action, to wit, that cause of action which all its material averments to-
gether support. -
Counts of the remaining class, to wit, those containing allegations a
part of which are appropriate and a part inappropriate to each of two or
more rights of action, would, for reasons already discussed and which need
inot be repeated, contain a joinder.
If I am correct in this interpretation of section 878 its provisions become
easily intelligible, and their application simple and satisfactory. There is
no longer any mystery as to what a count may properly embrace, nor mys.
tery as to what rights of action a count may support. A single count may
contain the statement of a single cause of action, and that only. It is such
'a Count, if all its material averments are pertinent and appropriate to the
statement of any One cause of action. If its allegations are in part appro-
priate and in part inappropriate to each of two or more causes of action,
there is a joinder of causes of action. Where there is a statement of a
single Cause of action, the plaintiff may have relief for any right of action
to which it entitles him. He can have no relief for rights of action to
which all the material allegations are not pertinent and appropriate.
The principles which I have thus laid down are general ones. In their
application to actual conditions, however, they are not without natural and
necessary limitations. Circumstances will sometimes arise under which,
from necessity, or convenience amounting to a practical necessity, their
strict enforcement will not be required. These circumstances will espe-
Cially arise where equitable relief is sought, either as preliminary to or in
connection with legal relief, or alone, where different forms of equitable
relief are demanded. Equitable causes of action are frequently not sus-
1158 APPENDIX.
ceptible of that clear and distinct separation from each other and from the
circumstances of the transaction out of which they arise that legal causes
of action are. Legal rights of action are generally clearly differentiated
from each other, and the facts which issue in them are generally easily
separable in statement from other connected facts. Equitable rights to
relief oftentimes run more closely into each other, and the facts which issue
in them are frequently not conveniently susceptible of an independent and
unassociated statement. The practice act lays down no hard and fast
rules which neither yield to necessity nor recognize that pleading is but a
means to an end — the end that issues may be framed and relief demanded
and given in a way most conducive to the convenient, orderly and proper
administration of justice and equity.
The Craft case calls attention to one of these limiting principles, where
it says that “separate and distinct causes of action within the meaning of
the rule are those which are separable from each other, and separable by
some distinct line of demarkation.” The opinion observes that in one sense
every cause of action must be separate and distinct from any other, while,
in another sense causes of action might differ from each other only in that
distinct and separate claims for relief issue from the same state of facts.
The practice act seeks to require nothing impossible, nothing Superflu-
ous, nothing which occasions inconvenience without a corresponding re-
turn. It therefore does not demand separation of causes of action where
the only distinction between them can be that which arises from the dis-
tinct kinds of relief which may be demanded from a given state of facts;
or where a separation by some distinct line of demarkation is impossible;
or where the ends of good pleading are better and more simply reached by
a departure from strict requirements. The principles which I have laid
down are therefore simply general ones which are to govern the pleader,
unless there is some sufficient controlling reason for action otherwise. They
are not to be applied in any technical spirit or with microscopic exactness,
but to the end that, upon the one hand, the many and grave evils of double
pleading may be avoided, and, upon the other, that parties may arrive at
issue as simply, directly and distinctly as they reasonably and properly
may. -
Having thus discussed principles without much reference to Connecticut,
authority, let me now inquire if there is such authority for contrary views,
I submit that there is none. The Craft case is the only one which has dis-
cussed this general question to any extent. If it be carefully studied, I
believe that in its doctrines there will be found nothing subversive of the
positions I have here taken. The court in that case clearly regarded the
complaint as One setting up only a single inseparable state of facts from
which two rights of action sprang—a single cause of action in the broad
and true sense of that term — or at least two causes of action incapable of
separation by any true line of demarkation.
Much of the difficulty, I fancy, which has arisen in the interpretation of
section 878, and of the Craft case, has come from a failure to distinguish a
cause of action from a transaction. These terms have been used so loosely
and interchangeably that the distinction between them which the codes
and our practice act emphasizes is too often lost sight of. -
APPENDIX. 1159
The prevalent notion that all that one now needs to do is to tell his story,
whatever that story may be, and leave to the opposite party and the court
the duty of guessing out what his cause of action is, has, I must believe, its.
Origin in this misunderstanding and the consequent misconception of what
the practice act requires to be stated. The cause of action—that is, the facts
from which the plaintiff’s right or rights of action spring—is required to be
set out. No semblance of authority is given for setting out a transaction, un-
less indeed the transaction in its entirety constitutes a cause of action. The
plaintiff is compelled to discover from the acts and occurrences of the trans-
action his cause or causes of action, and set them out separately. He is not
required, as the Craft case Says, to construe his right under a cause of ac-
tion and give it a label, as he was obliged to do in common-law pleadings;
but he is obliged to select his cause of action, and make known his claimed
actionable facts which constitute it. The story which the Craft case says
he is permitted to tell as plainly and concisely as may be is the story which
makes up the cause of action, and not any longer or more comprehensive
story—not the story of a transaction. The practice act is careful to make
this distinction between a transaction and a cause of action, and to impose
the duty of Separate allegation. It contains express recognition of “several
causes of action arising from the same transaction, or transactions con-
hected with the same subject of action.”
Having thus laid down the rules by which counts are to be tested respect.
ing joinder of causes of action therein, it remains to apply them to the
Complaint under review. It was apparently, and I believe I may fairly say
Confessedly, framed to enable the plaintiff to recover thereunder upon any
Cause of action it might ultimately appear that it had growing out of the
matters covered by its allegations. If not precisely hydra-headed, it cer-
tainly looks in at least six different directions. Within it are matters.
which might be held to justify a recovery under any one of the following
conditions: -
1. A recovery for the breach of the common-law duty of a common car-
rier where no express agreement of carriage was made. -
2. A recovery for the breach of the common-law duty of such carrier re-
ceiving goods for transportation without an express agreement for carriage,
which breach of duty consisted in its active negligence. -
3. A recovery for the breach by such carrier of an express contract of, .
carriage.
4. A recovery for the destruction of property delivered to such carrier
under an express contract, which being unreasonable and unjust in its
terms, and improperly exacted from the shipper, may not protect it from
responsibility for the destruction of the goods.
5. A recovery for the breach of duty of such carrier by reason of its own
negligence, notwithstanding an express contract of carriage was made.
6. A recovery for negligence pure and simple.
The plaintiff disclaims any thought of preparing the way for recovery
upon the latter ground, but expresses its desire to have the count so phrased:
that it would support a recovery if the evidence should disclose the exist-
ence of either of the other conditions.
I need not say that in my opinion a count of this kind is improper.
1160 APPENDIX.
The fundamental fault in the complaint is that it sets out the whole
transaction. The plaintiff has not sought to gather from its incidents its
cause of action and set that up, or its causes of action and set them up sep-
arately.
It is clear that under the principles I have laid down the count is not a
good one for either the first, second, third, fourth or sixth causes of action
enumerated. The presence therein of material averments inappropriate to
either one of these causes of action, but pertinent to other causes of action,
leads to this result. If the count can upon its most liberal construction be
justified as an attempt running through all its allegations to set up one
cause of action, it must be one for the destruction, through the negligence
of the defendant carrier, of goods delivered to it for transportation for hire
under a special contract, which, being unreasonable and improperly ex-
acted, could not exempt it from responsibility for such negligent destruc-
tion. e •
Even in this aspect of the count it is not free from faults. If it is sought
to allege the existence of a special contract of carriage, the averments are
neither appropriate nor sufficiently clear. Certain evidential facts are re-
cited, but it is nowhere apparent much less distinctly alleged, whether it
is claimed that a contract existed or not. It is impossible to gather from
the averments what the claimed state of facts, and therefore what the cause
of action, is. It is not possible to discover what right of the plaintiff it
claims to have been invaded, or by what precise wrong it has been invaded.
Section 880 provides that all pleadings shall contain a plain and concise
statement of the material facts upon which the pleader relies, but not of
the evidence by which they are to be proved. Another requirement of code
pleading is that all allegations shall be direct and certain. Clearly these
requirements are not met in the present complaint. •
The defendant's motion is granted to the extent that the plaintiff is
Ordered:
1. To separate into distinct counts its several causes of action, if it desires
to rely upon more than one. -
2. To state such cause or causes of action in distinct and certain aver-
ments, which shall avoid recitals of evidential matter, allegations of facts
which are not ultimate and operative facts, and averments of facts which
are not material to the cause of action being stated.
INDEX.
References are to pages.
ABATEMENT —
of nuisances by injunction, 359, 1085, 1091.
ABSOLUTE POWER —
unknown in America, 462.
ABSOLUTE RIGHTS, 135.
do not exist, 612.
ACCIDENT — -
will not sustain an action, 1037.
ACCORD AND SATISFACTION (see CoNTRACTs).
ACCOUNTING —
judgment in, 1074, n.
basis of, 1074, 1075.
based on contractual relation, 1076.
lies against whom, 1075.
none between debtor and creditor, 1074.
between partners, 1075.
ACCRETION (see REAL PROPERTY, sub-head Title).
ACTIONS —
table of forms of, 1073.
meaning of, 110.
scope of subject, 1025.
basis of right, 1026.
fundamental maxim, 1027.
subjects of judicial, 1036.
for damage by lawful act, 1037.
cause of, right of, and grounds of, distinguished, 1064.
what it is, 1036.
elements of, 1037.
cannot be split up, 1107.
relief distinguished from, 1065.
under interstate commerce act, 364,
liability of public officers, 527.
how classified, 1036.
legal and equitable, 1063–66,
equitable, classified, 1064.
utility of classification of, 1063.
in personam, in rem, 142, 1036.
1162 INDEX.
References are to pages.
ACTIONS (continued) —
eac delicto and ea; contractu, why distinguished, 734, 735.
classified as legal and equitable, 1063.
distinctions between equitable and legal, utility of, 1072.
equitable, forms of, 1072.
outline of, 1073.
legal, classification of, 1091.
outline of forms of, 1092.
peculiar, for enticing breach of contract, 845.
ordinary and extraordinary, 1091.
extraordinary, certiorari, 1093.
habeas corpus, 1093.
7mandamus, 1093.
prohibition, 1093.
quo warranto, 1093.
survival of, 136, 801.
personal, die with person, 136, 1104.
for causing death; Lord Campbell's Act, 681.
assignability of, 800–802.
strictly personal, not, 801:
for tort, when, 1104.
ADMINISTRATION (see REAL PROPERTY, sub-head Title)—
functions of, 1022.
ADMIRALTY AND MARITIME JURISDICTION —
when it attaches, 1096, 1097.
exclusively in national courts, 1097, n. 2.
ADOPTION —
defined, 672.
how performed, 672.
consent of parents, when required, 672.
consent of child, when necessary, 672.
effect of, 672.
methods of, 673.
due process of law in, 673.
rights of adopted child, 673.
AGENT (see PRINCIPAL AND AGENT; CORPORATION).
AGREEMENT (see CONTRACTS)—
differs from contract how, 707.
ALIENS, 601.
rights of, 601, 602.
privileges of, 603.
disabilities of, 602.
ALLEGIANCE, 16.
new form of, introduced by William I., 28.
transfer of, 50.
nature of, 204.
depends on contract, 957.
INDEX. 1163
References are to pageS.
ALLEGIANCE (continued)—
of colonists to king, 51.
reason for colonial renunciation, 56.
result of colonies’ renunciation, 177.
paramount, is to the nation, 407.
ALLODIAL TITLE (see REAL PROPERTY), 21.
AMENDMENT –
to federal constitution, 192.
to state constitutions, 197.
AMENDMENTS IN PROCEDURE –
statutes of, 1061.
when allowed, 1061.
how made, 1061.
AMPHYCTIONIC LEAGUE, 7.
ANALYSIS —
utility of, 66, 70.
universality of, 76.
principle examined, 76.
principles of legal, 73.
legal, explained, 79.
beginning of legal, 11.
in American law, 284.
in American treatises, 81.
method of institutional writers, 39.
Bacon’s, 41.
Coke's, 42.
Hale's, 44.
Hale's and Blackstone's contrasted, 120.
ANIMALS –
feroe naturoe, property in, 695.
ANTE-NUPTIAL CONTRACT –
when valid, 664.
ANTI-TRUST LAW, 779.
APPELLATE JURISDICTION (see JURISDICTION) —
function of, 287.
of state courts, 1101.
APPORTIONMENT –
of state for political purposes, 440.
APPORTIONABILITY OF CONTRACTS (see CoNTRACTs).
ARBITRATION (see CoNTRACTs).
ARMY, NAVY AND MILITIA —
organization of, 400, 773.
standing military forces, 403.
standing, 401 et seq.
the regular, 404.
disciplined by congress, 404.
1164. INDEX.
References are to pages.
ASSIGNABILITY –
and negotiability, distinguished, 800.
and sale, distinguished, 802.
of contracts, see CONTRACTS.
mere personal torts not, 803.
ASSUMPSIT —
and accounting, distinguished, 1075.
origin of, 243, 1049.
an equitable action, 243.
none arises from mere benefit, 717, 748.
for money had and received, 796.
general and special, 1062.
general issue formerly not guilty, 735, n.
distinction between recovery on contract and on consideration, 757.
quantum merwit, when allowed, 758, 760.
in law-merchant, 243, n.
ATTACHMENT—
for contempt, 1091.
ATTORNEY AND COUNSETIOR –
officer of court, 1030.
presumed to act rightly, 1030.
relation with client, 1031.
duty to client, 1031.
contracts with client, 1031.
contract of retainer, when valid, 1031.
contingent fees, 1031.
lien of, 1031.
substitution of, 1031.
disbarment of, 1031.
right to practice, a property right, 1031.
ATTORNEY-GENERAL —
great law officer of the state, 485.
importance of the office, 484.
powers and duties, 484.
AULA REGIS, THE, 1041.
a council of the king, 1042.
BAILIFF —
of court, 1030.
BAILMENT —
a generic term, 884,
embraces apparently diverse contracts, 884.
synoptical outline of, 887.
species of, 884.
definitions and distinguishing features, 885.
by finding, 885.
what may be bailed, 888.
INDEX. 1165
References are to pages.
BAILMENT (continued) —
forms and classification of, 886.
DEPOSITUM, 888.
COMMODATUM, 889.
MANDATUM, 889.
PIGNUS, PLEDGE, OR PAwN, 890.
what may be pledged, 890.
of choses, 891.
manner of keeping, 891.
remedies of pledgee, 891.
remedies of pledgor, 892.
LOCATIO, OR HIRING, 892.
of thing, 892.
use of thing, 892.
repair of, 893.
locatio operis (hiring of labor), 893.
ordinary skill and care required, 893.
custodoe, classes of, 894.
an agister is, 894,
lodging and boarding-house keepers, 894.
wharfinger, 894,
his lien, 894.
warehousemen, 895.
bonded warehouse, 895.
hotel and innkeeper as bailee, 896.
an insurer of guest’s property, 897.
limited liability, 897.
postmaster as custodian, 896.
locatio vehendarwºm, carrier of goods, 899.
private carriers, 899.
are mandataries, 899.
common or public carriers, who are, 899.
reasonable discrimination by, 904.
care required of, 899.
liability for loss, 900.
are insurers of safety, 900.
except as to act of God and public enemy, 900.
strikes, as excuse for delay, 900.
contract limiting liability, validity of, 901, 902.
termination of liability, 903.
double ground of liability, 901.
delivery to consignee, 904.
right to discriminate, 904.
connecting lines, 905.
degrees of care and negligence, 906.
lien for charges, 904.
respondeat superior applies to, 909.
forms of actions against, 909.
of live-stock, 901.
not insurers, 907.
1166 INDEx.
References are to pages.
BANKRUFTCY AND INSOLVENCY —
history of legislation, 386.
powers of congress over, 386.
insolvency laws distinguished from, 387 et seq.
formerly involuntary not allowed, 387, 394.
power of state, 389, 390.
suspended by federal action, 390.
state laws not extra-territorial, 391.
law must be uniform, 394.
who may become bankrupt, 394. -
formerly compelled for fraud or misconduct, 387, 389.
an act of, defined, 395.
effect on state proceedings, 396.
effect on suit in state courts, 397.
BANKS —
origin and utility of, 948.
organization and management, 948.
cashier a special agent, 810.
of issue, 949.
deposits, general and special, 952.
banker becomes owner of deposit, 948.
hecomes debtor of depositor, 948.
has unlimited discretion over, 949.
criminal acceptance of, 949.
checks, 948. See NEGOTIABLE PAPER.
defined, 950.
certified, 951. ->
memorandum defined, 952.
certificates of deposit, 951.
as collectors, 950.
BARGAIN AND SALE (see SALE).
BASTARDS (see PARENT AND CHILD) —
have no father, 671. -
how legitimatized, 671.
presumptions of legitimacy, 672.
proofs of illegitimacy, 672.
father no power over, 674.
BILLS IN EQUITY (see EQUITY).
BILLS OF ATTAINDER, 48, 453,
defined, 454.
are eac post facto laws, 49.
prohibited by constitution, 49, 453, 616.
BILLS OF PAINS AND PENAILTIES —
defined, 49, n., 454.
unconstitutional, 453.
BLACKSTONE –
Commentaries of, 6, n.
misleading views of, 37.
INDEX. 1167
References are to pages.
BOTTOMRY BOND (see INSURANCE).
BOUND ARY —
meander lines, 1020.
water as, 1019.
description of, 1019.
fixing disputed, 1011.
BOYCOTT–
defined, 1086.
enjoined in equity, 1086.
injunction against, 360.
PRACTON, 36.
BRITAIN —
Roman occupation of, 30.
BURIAL (see DOMESTIC RELATIONS)— &
right of action for performing this service, 682.
duty of, 681.
HY-LAWS (see CORPORATION) —
when regarded as public law, 1094.
C.
CANON LAW (see LAw).
CARE —
in different bailments, 906.
CARRIERS (see BAILMENTs)—
forms of action against, 909.
*CARRIERS OF PASSENGERS —
not insurers, 907.
presumption from accident, 908.
of negligence, when inapplicable, 909, n.
care required, 907.
just and unjust discrimination, 909.
baggage, definition, 905.
what reasonable, 995.
passenger, who is, 909.
when relation begins and ends, 909.
CASE (see TRESPASS ON CASE), 1049.
CAUSE OF ACTION (see ACTIONs)—
may embrace many items, 1107, 1166.
CAVEAT EMPTOR (see SALEs).
CEMETERIES —
right to disinter, 683.
74
1168. INDEX.
References are to pages.
CERTIOR ARI —
nature of, 1093.
by special tribunal, 1095.
nature of the writ, 1095.
Office of the writ, 1095.
question in, 1095.
when it lies, 1095.
to question jurisdiction exercised by judicial officer, 1094, 1095.
how tried, 1095.
CHANCERY (see EQUITY).
CHARITIES -—
enumeration of, 997, n.
educational corporations are, 533.
equity jurisdiction over, 1084. ,
CEHARITY —
defined, 533, n., 997.
CHATTEL MORTGAGE (see MoRTGAGE), 878.
CHECKS AND BALANCES —
what are, 287.
in Athenian state, 4.
CEIIEF JUSTICIAR —
ancient office, 1043.
CEIOSE —
derivation and meaning of, 124, 129.
a Norman-French word, 799, 801.
scope of the word. 801.
misconceptions of, 801.
distinguished from tort, 801.
CEIOSE IN ACTION —
generally assignable, 799, 800.
but not negotiable, 801.
doctrines of, 800, 801.
assignability in equity, 801.
CHRISTIANITY —
influence on law, 18.
part of the common law, 630.
recognition of, 630.
CEIURCH AND STATE —
relation of, 19.
in America, 628. &
CIGARETTE —
subject of interstate commerce and police regulation, 456.
CITIZENS —
fourteenth amendment defines, 604,
who are, 614,
privileges and immunities of, 616.
INDEX.
1169
References are to pages.
CITIZENSHIP —
forfeiture of, 606.
CITY (see MUNICIPAL CORPORATIONs).
CIVIL LAW, THE, 13.
influence of, 37.
influence on English, 31.
influence of study of, 35.
Blackstone’s erroneous views, 37.
classification of rights, 132.
CIVIL LIBERTY —
defined, 598.
equality before the law, 4.
same as Blackstone's absolute rights, 149.
CIVIL RIGHTS, 147.
defined, 607.
equals civil liberty, 607.
various kinds, 607.
to hold office, 607.
jury service, 608.
CIVILIZATION —
tests of progress, 30, n.
CLASS LEGISLATION —
business may be classified, 623.
when legal, 623.
CLASSIFICATION —
of American law, 151.
ancient, 103.
rule governing, 78.
uses of, 78.
errors in, 83, 90.
Blackstone's, criticised, 94.
CLERE OF COURT —
duty of, 1030.
CLOUD ON TITLE –
what constitutes, 1081.
bill to remove, see EQUITY.
CODIFICATION —
objects of, 1055.
principles of, 1057.
test of practicability, 1055.
judicial construction, 1057.
methods of, 69.
recognizes distinction between law and equity, 1114.
1170 INDEX.
References are to pages.
COLONIES —
relation to Great Britain, 52.
united, of New England, organic law of, 206.
political status of, 238.
our colonial possessions, 236.
acquisition of, 236.
not entitled to territorial government, 231.
dependency may be continued, 231.
COLOR DISCRIMINATIONS, 627.
COMBINATIONS, 356.
tendency of, 565, n.
COMITY —
as to foreign corporations, 581.
COMMERCE —
defined, 344.
always mere traffic, 353.
conducted by contract, 353, 705.
extent of term, 344,
includes navigation, 344.
relation to other subjects, 339.
power to regulate, effect on power to tax, 839.
regulation of —
in England, 53, 318.
defined, 339, 341.
not taxation, 317.
and taxation distinguished, 340, n.
clause of the constitution, 341.
nature of power it confers, 341.
effect of interpretation of, 340.
by embargo, 342.
now superior to general welfare, 352, 353.
instruments of, 344.
includes navigation, 344.
power to regulate navigation, 357.
INTERSTATE COMMERCE—
what is, 344.
contract subordinate to, 355.
not all interstate contracts within, 344,
insurance contract not within, 344.
drummer cases, 345.
original package cases, 350.
congress may regulate exclusively, 340, 346.
when state may regulate, 347.
regulation of, how interfered with by state, 348, n.
prohibition law of Iowa, 351.
COMMISSIONERS OF HIGHWAYS —
are courts, 1032.
INDEX. 117 ſ.
--- References are to pages.
COMMON SCHOOL –
meaning of, 532.
COMMONS, HOUSE OF –
a new estate, 34.
rise of, 34.
only representative body in parliament, 34.
COMMUNITY PROPERTY —
experiments in America, 693.
COMPACT THEORY —
Origin of, 14.
COMPULSORY EDUCATION, 675.
CONFEDERACIES, ANCIENT, 289.
CONFEDERATION OF COLONIES OF 1781, 209,
CONFIRMATIO CARTARUM-
importance of, 47.
effect on taxation, 34.
Scope of, 34.
Secures property rights, 34.
CONGRESS —
character of power of, 274, n.
Source of information concerning, 284.
origin of, 289.
not modeled after parliament, 288.
contrasted with parliament, 289.
organization of, 296.
POWERS OF, 297.
scope of subject, 297.
legislative, 300.
source of, 308.
how granted, 297.
grants of power, 307.
express and implied powers, 299, 300.
granted powers, 301.
extent of, 304.
implied powers are, 302.
has powers not.expressly enumerated, 307.
constructive, so called, 342.
auxiliary resulting powers, 312, 313.
inherent powers of, 306, 313, 314, 377.
result from inherent powers of nation, 308.
when self-executing, 297.
the revenue power, 315.
to regulate commerce, see COMMERCE, 339.
no proper police power, 354, 355.
over interstate contracts, 356.
to regulate currency, see MONEY.
1172 - TNIDEX.
References are to pages.
CONGRESS (continued)—
POWERS OF (continued) —
to borrow money, 372. -----
over bankruptcy, 386.
war and military power, 399.
to declare war, 399,
to raise and support armies, 402.
to organize, arm and discipline militia, 402.
over postal regulations, 413.
to make and aid public improvements, 416 et seq.
by land grants to private corporations, 416 et seq.
Pacific Railway legislation, 418 et seq.
public aid to private enterprises, 422 et seq.
no exclusive as to trade-marks, 700.
CONNECTICUT —
nature of old constitution, 262.
CONQUEST (see REAL PROPERTY).
CONSENT, 3.
basis of American law, 179.
individual, originally required, 185.
element of taxation, 326, n.
CONSTABLE, 1030.
CONSTITUTION —
character of American, 60.
British and American contrasted, 272.
defined, 259, 260.
described, 261.
meaning of, 259, n.
what it embraces, 260.
created by society, 259.
does not create rights of people, 262.
how formed, 259.
is a law, 259.
may consist of usages, 261.
unwritten, 260, n., 261. -
of united colonies of New England, 206.
relation of, to legislature, 261.
only warrant of official power, 260, 272, 273.
limits all power, 273. -
limitations in, are mandatory, 445.
provides system of checks and balances, 285.
Sanctioned by people's adoption, 188.
adoption violated articles of confederation, 189.
assent of states to, 303, 304.
national, is supreme, 197.
Supreme law of land, 241.
not extended per se over territories, 212.
relation to inhabitants of territories, 213.
INDEX. 1173
A-r
References are to pages.
CONSTITUTION (continued)–
relation to, of Ordinance of 1787, 213.
state and national distinguished, 273, 290.
OF NATION — &
not drawn from state sovereignties, 305.
supremacy of, 272.
a grant, 290.
an enumeration of powers, 804.
interpretation, development of, 298.
modes of, 298, 299.
antagonistic method of, 299.
true methods of, 364.
by aid of common law, 252.
by usages and customs, 448.
construction of, 225, n.
OF STATE —
distinguished from national, 290.
not a grant of legislative power, 290.
but a limitation on, 262.
a grant of executive authority, 477.
a grant of judicial power, 477.
not an enumeration of subject, 438.
improper uses of, 285, n.
amendments to, 192, 197.
effect of fourteenth amendment on,620.
CONSTITUTIONAL LAW —
meaning of, 298.
same as law of persons, 68, n.
nature of, 68, 102.
scope of, 298.
embraces remedies, 1026.
how studied naturally, 1.
analytic study of 297.
CONSTRUCTION —
defined, 301.
CONTEMPT —
attachment for, 1091.
CONTRACTS — *
the indispensable medium of commerce, 353.
a means of conveying rights, 704.
impose obligations, 704.
a species of jus in personam, 140.
functions of, 704.
relation to real property, 955–57.
elements of, 707.
agreement and obligation, important elements of, 706.
subject to power of government, 371.
1174. INDEX.
References are to pages.
CONTRACTS (continued)—
control of congress over, 356.
freedom of, subject to police regulation, 460.
not unrestricted, 774.
defined, 706. -
quasi, 138.
obligation of, 707, 786.
nature of obligation, 787.
distinguished from the contract, 788.
state cannot violate, 391.
congress may, by bankruptcy law, 386.
Classes of, 707.
of records, 707, 708.
extent of implied, 749.
when implied, 748.
statutes merchant and staple, 708.
assignability, 799, 800.
anticipatory breach, doctrine of, 860.
by repudiation before performance, 860.
remedy, 860.
PARTIES, 708.
capacity to contract, 708.
mon compos mentis persons, 714.
extent of insanity to avoid, 714.
when void, 715.
when voidable, 715.
liability for necessaries, 716.
illiterate person competent, 717.
intoxicated persons, how far, 716.
sickness as a disability, 716.
infant’s, when voidable, 710.
ratification of contracts, 712,
seamen, peculiar status of, 713.
married women, capacity to contract, 713.
alienage, not properly an incapacity, 717.
ASSENT —
how it arises, 707.
agreement in, 707.
must be real, 715.
must be actual, 733.
usages and customs, effect on, 731.
course of dealing, effect of, 732.
must be voluntary, 720.
wndwe influence, defined, 726, 727.
effect of, 727.
duress, defined, 726.
effect on contract, 726.
INDEX. 1175.
References are to pages.
CONTRACTS (continued)—
ASSENT (continued)—
fraud in obtaining, 723, 1069.
nature and elements of, 722.
when representations may be relied on, 725, 726.
effect on contract, 725. -
fraudulent representation must be of facts, 723.
fraud and circumvention defined, 723.
by suppression of fact, 722.
effect on assent, 722.
care to avoid, when important, 725, 726.
misrepresentation, distinguished from mistake and fraud, 721.
as to law, effect of, 720.
7mistake —
of law, when material, 720.
neglect to read contract, 724.
offer and acceptance —
by mail, how made, 718.
acceptance must be complete, 718.
by acts, 717.
offer must be real, 717.
offer, mere advertisement not, 718.
implied; not implied from mere benefit, 717.
by accepting benefits, 717.
how expressed, 717.
by standing by, 717.
when implied, 717.
CONSTRUCTION —
scope of assent, 780.
by law of place, 731.
effect of usages and customs, 731.
agreement and not intent controls, 732.
FORM —
of agreement, 727.
importance of, 734.
an element of the obligation, 734.
statute of frauds affects, 739.
fourth section, terms and construction of, 739, 740.
when part performance takes out of, 742.
when void and voidable if within, 741, 742.
how evidenced, 729.
sealed, 736.
bind only parties named, 738. *
exclude evidence of undisclosed principal, 738.
origin of use of seal, 737.
may rest partly in writing and partly in parol, 727.
executed and executory, 736.
when necessarily evidenced by writing, 741.
1176 INDEX.
References are to pages.
CONTRACTS (continued)—
CHARACTER AND RELATION OF STIPULATION, 749.
covenants and conditions distinguished, 750.
stipulations, how related, 751.
suspensive conditions, what are, 750.
conditions—
effect of, 750,
defined, 750.
when precedent and when subsequent, 753 et seq.
imposed by law, 755.
imposed by covenant, 755.
implied conditions, 755.
COvenants —
several kinds of, 752.
rules for determining, 752.
dependent and independent, 749, 750, 751.
when independent, 754 et seq.
apportionability of contracts, 760.
successive suits for instalments, 762.
entire contracts —
defined, 756.
test of entirety, 762.
are never apportionable, 762.
may be entire on one side and apportionable on other, 762.
conflict of authority, 756 et seq.
distinguished from mutual covenants, 752.
are species of conditional contracts, 756.
Cutter v. Powell explained, 757.
must be fully performed, 756, 757.
performance, when a condition precedent to recovery, 762.
performance prevented by act of God, 757, 758.
remedy when apportionable, 762.
separable performance, 763. *
effect of wrongful discharge, 760.
damages for wrongful discharge, 759.
voluntary abandonment, 760.
CONSIDERATION.
origin of idea, 743.
valuable and good, 743.
essential to simple contract, 743.
how it arises, 745.
species of, 746, 747.
not essential to formal deeds, 744.
seal conclusive evidence of, 737, 738.
marriage as, 743.
past, when sufficient, 748.
pre-existing debt as, 865.
mere moral, insufficient, 748.
INDEX. < 1177
/ References are to pages.
CONTRACTS (continued)—
SUBJECT-MATTER —
meaning of, 763.
and consideration, sometimes the same, 763.
impossible, not binding, 786.
impossibility defined, 786.
illegality of subject-matter and of consideration, 764.
illegal, not binding, 763.
illegality defined, 765, 766.
when void, 764.
when voidable, 764,
illegal by common law, 767.
as against public policy, 767, 768.
penalized, defined, 765.
when void, 766, 767.
void and voidable distinguished, 765.
invalid where made, invalid everywhere, 768.
illegal, when void ab initio, 764.
consideration, must be legal, 764.
if void, contract void, 765, 766.
illegal, divisability of, 765.
illegality, classes of, 766.
illegality, instances—
obstructing course of justice, void, 772.
against good morals, invalid, 773.
for separation of husband and wife, when valid, 769.
brokerage contract, 769.
in restraint of trade, 356, 774.
pooling and combination illegal, 356.
joint traffic contracts, when legal, 356.
traffic regulations, 356.
unlawful restraint of trade, 775.
partial restraint of trade, valid, 776.
reasonable restraint of trade allowed, 777, n.
tending to stifle competition, 778.
ousting jurisdiction of courts, void, 773.
arbitration contracts, when valid, 773.
gambling contract, 781.
when illegal, 780.
champerty, 768.
tending to injure public service, void, 771.
violating congressional authority, 356.
of public officers, when valid, 769.
lobbying contracts, 771.
illegal contracts; recovery on, consideration, 786.
DISCHARGE —
by bankruptcy, 386.
performance prevented by act of God distinguished, 758.
how dissolved, 790.
11.78 INDEX.
References are to pages.
CONTRACTS (continued) —
DISCHARGE (continued)—
how rescinded, 790, 791.
substituted agreement, 791.
novation, 792.
what constitutes, 792.
merger of, 793.
CONVENTION —
nature of constitutional, 303.
constitutional, in England, 50.
anti-revolution, 206.
of 1787, acted in awtre droit, 188.
CONVEYANCING (see REAL PROPERTY, sub-head Title).
COPYRIGHT —
property in, 696.
nature of property, 697.
ownership of, 698.
what constitutes publication, 697.
sale of, 698.
CORONER, 526.
CORPORATIONS —
various forms of association, 562.
political tendency of, 564.
are bodies politic, 486.
among the colonies, 488.
how created, 487, 488.
by the state, 501, 565.
policy in creation, 564.
instruments to accomplish an end, 504.
essential elements of, 562, 569.
perpetual succession of, 266, 267.
described, 492.
defined, 489, 491, 500.
de facto, 596.
cannot change objects, 573, 576.
need not contract under seal, 592.
right to hold land, 996.
grants of land to, 974.
PERSONALITY OF, 266, 494, 568, 569.
distinctive features of, 500, 568.
distinguished from natural persons, 494.
CORPORATE CAPACITY —
explained, 270.
legal idea of, 493.
a legal entity, 496.
attributes of, 265, 266, 499.
THE FRANCHISE, 271.
defined, 271, 497.
nature of, 565.
INDEX. 1179
References are to pages.
CORPORATIONS (continued)—
THE FRANCHISE (continued) —
a contract, 450.
the legal capacity, 497.
to be, and franchises of, distinguished, 498,499.
belongs to members, 578.
of, 495.
belongs to corporation, 578.
not subject of sale, 595.
CLASSIFICATION OF, 501 et seq.
public, are but quasi, 486.
private, classification of, 506.
quasi public are, 507.
pure are always voluntary, 489.
pure and quasi distinguished, 501.
aggregate, classes of, 561.
corporations sole, 266, 489, n.
examples of, 269.
few in United States, 270, 500.
are public officers, 266, 269, 270.
distinguished from magistrates, 270.
nature of educational, 533.
eleemosynary, 592.
LOCATION, 570, 581. p
residence or domicile of, 581, 582.
citizenship of, 581.
extra-territorial recognition, 581.
comity in regard to, 581, 582.
tramp corporations, 581.
STATE OWNERSHIP OF, 597.
SUBSCRIPTIONS TO CAPITAL —
promoters, contracts, 570.
agreement to become member, 576.
how enforced, 577.
payment of subscription in property, when valid, 577.
capital when fully paid, 577.
ARTICLES OF ASSOCIATION —
a contract between members, 570.
a part of charter, 572.
become merged in charter, 572.
add nothing to powers, 573.
changes in, 573.
how made, 579.
BY-LAWS, 574.
authority to pass, 576.
may amount to contract, 574, n.
may amount to public law, 575.
and be enforcible by mandamus, 1094.
1180 INDEX.
References are to pages.
CORPORATIONS (continued)—
BY-LAWS (continued) —
directors’ by-laws, 575.
members’ by-laws, 575.
CHARTER —
general incorporating acts, 571.
object of, 571.
a grant of power, 572.
elements of, 571.
measure of power, 572.
power of legislature to repeal, 579.
power of legislature to change, 579.
determines object, 571, 572.
governs mode of accomplishing objects, 572.
POWERS OF, see ULTRA VIRES.
as trustee, 269.
combination, consolidation and reorganization, 594,
CONTROL OF —
belongs to members, 573.
in conformity to articles, 573.
governed by majority, 573.
majority cannot change articles, 574.
cannot change objects, 575.
powers of members, 579.
MANAGEMENT OF CORPORATE BUSINESS, 573.
by officers, 574.
affairs and business distinguished, 578.
business, where tranisacted, 582.
OFFICERS —
implied powers of, 574.
are agents, 584.
scope of agent's authority, 591.
executive and ministerial offices, 590.
DIRECTORS —
powers of, 583.
authority as agents, 578, 583.
may appoint sub-agents, 584.
discretion in management, 585.
contracts with corporation, 589.
are valid, when, 589, 590.
liability for torts, 592.
CORPORATE EARNINGS —
controlled by directors, 586.
DIVIDENDS—
declared only by directors, 585.
change of membership, effect of, 580.
assignment of shares, 580.
liability of assignee, 580, n.
INDEX. 4. 1181
References are to pages.
CORPORATIONS (continued)—
STOCKHOLDERS —
contract with corporation, 593.
rights and liabilities, 585.
relation to corporation, 586.
right to dividends, 593.
right to sue corporation, 594,
relation to officers, 587.
remedy against officers, 587.
rights and liabilities, 593.
individual liability of, 594,
liability to third persons, 592.
liability for tort, 592.
CHARITABLE CORPORATIONS —
not liable for torts, 592.
liability for malicious torts, 592.
DISSOLUTION OF, 595.
procedure for dissolution, 596. *-
quo warranto against, 1094.
CORPSE —
property rights in, 682.
unlawful dissection, 683.
COUNTY —
a quasi-corporation, 481.
organization among colonies, 515, 516.
as unit of representation, 512.
territorial civil divisions, 515.
created by constitution, 510.
few corporate characteristics, 516.
classes of powers, 511.
COUNTY CLERK, 526.
COUNTY COURT —
ancient Saxon, 1040.
COUNTY ORGANIZATION, 441.
COUNTY TREASURER, 526.
COURTS —
embrace all who exercise judicial power, 1032.
Norman, 29.
exercise only judicial power, 1027.
administer the law, how far, 1028.
judicial discretion of, 1028.
defined, 1029.
how created, 1029.
formerly by crown, 1048.
courts-martial, 257.
jurisdiction of, 410.
1182 INDEX.
References are to pages.
COURTS (continued)—
probate courts, equitable jurisdiction, 1102.
surrogates’ courts, 1102.
county courts, jurisdiction of, 1101.
clerk, power in vacation to issue injunctions, 1101.
supreme court of state, original jurisdiction, 1100.
terms of, 1101. -
state, judicial establishment, 1100.
independence of, 1029. - &
constitution and functions of, 1030.
cannot act of their own motion, 1030.
relation of state and federal, 248.
not foreign, 1096.
federal — §
original jurisdiction of, 1099.
how far follow state, 248.
enumerated, 1095.
outline of, 1095.
CLASSIFICATION OF, 1032.
superior and inferior, 1032.
of record and not of record, 1032.
general and special jurisdiction, 1032.
reason for classification, 1033.
of general jurisdiction, 1033.
federal circuit courts not, 1033.
NATIONAL JUDICIARY, 1096.
outline of, 1095.
orbit of jurisdiction, 1096.
national, constitutional provisions, 1096.
relation of state and national; they are co-operating, 1096.
national supreme, 1097. •
jurisdiction of supreme, 1097.
JURISDICTION OF FEDERAL, 1006.
source of, 1098.
supreme court, 1097.
congress may confer original, 1098.
admiralty and maritime, 1097.
peculiarity of maritime, 1097.
character of parties as affecting jurisdiction, 1100.
cannot be conferred by consent, 1100.
equity jurisdiction, 1096, 1098.
TERMS OF, 1101.
meaning of, 1101.
PROBATE COURTS, 1102.
equitable jurisdiction, 1102.
JUSTICE, 1103.
jurisdiction of, 1103.
MUNICIPAL, 1103.
jurisdiction of, 1103.
INDEX. & 1183
References are to pages.
CREDITORS' BILLS (see EQUITY) —
ground of jurisdiction, 1076.
scope of, 1077.
requisite of jurisdiction, 1077.
CRIMINAL LAW —
fundamental principles of modern, 1149.
development of jurisprudence, 1149.
CRIMES — -
classification of, 1149.
constitutional, an essential part of criminal law, 1149, 1150.
protection of accused, 1149. f
constitutional protection to convicted person, 1150.
MODERN CRIMINAL CODES, 1150.
CRIMINAL PLEADING —
simplified by statutes, 1150.
requisites of indictment, 1150.
usual criminal pleas, 1151.
CRIMINAL EVIDENCE, 1150.
PRACTICE IN —
principle of, 1150.
CUBA —
nature of question of dependent possession, 237.
CURRENCY (see MONEY).
CUSTOMARY LAW (see LAw), 245.
CUSTOMS —
part of common law. 242.
general customs, 243.
general and particular distinguished, 245, n.
elements of, 731. -
CUSTOMS DUTIES (see TAxATION, INDIRECT)—
origin of, 330, n. h
D.
DAMAGES —
measure of, for conversion by bailee, 892.
DECLARATION OF INDEPENDENCE –
designates inalienable rights, 608.
reasons for, 56.
DEEDS (see REAL PROPERTY, sub-head Title).
DEFINITIONS —
utility of, 64.
of law, erroneous use of, 88.
relation to classification, 92.
DELEGATION —
of official power, 261.
legislative, 449.
DEMOCRATIC GOVERNMENT, 191.
75 -
1184 INDEX.
References are to pages.
DENIZENS (see PERSONs).
DESCENT (see REAL PROPERTY, sub-head Title).
DEVISE (see TITLE) —
executory, defined, 1022.
DISCOVERY (see EQUITY) —
bill of, 1088.
almost obsolete, 1114.
disuse of, 1108.
caused by modern evidence acts, 1088.
and abolished by code, 1113.
IDISCRETION —
of court, 676.
DIVINE RIGHT OF SOVEREIGNS, 5.
revived in England, 44.
DIVORCE (see MARRIAGE), 654.
nature of proceeding, 1036, n. 5.
effect of, 662.
cuts off dower and curtesy, 662.
alimony, defined, 662.
when granted, 663.
in extra-state land, 663.
interstate divorces, 659.
domicile of wife, 662.
custody of children, 676.
a memsa et thoro, 658.
a vinculo matrimonii, 658.
GROUNDS OF, 656.
adultery, 656.
cruelty, 656.
what constitutes, 656.
desertion, 657.
conviction of crime, 657.
DEFENSES, 657.
condonation, 658.
recrimination, 658.
DOMESTIC RELATIONS, 631–688.
scope of subject. 630, 631.
master and servant, no longer a, 631, 632.
status, the dominant principle of, 631.
conception of status, 631.
FAMILY the unit of, 632.
basis of society, 633.
Roman idea of, 633.
not necessarily of kin, 633.
head of, 632.
as representative, 632.
ancient status, 633.
actions for sale of intoxicants to member, 680.
INDEX. 1185.
References are to pages. {
DOMESTIC RELATIONS (continued)—
FAMILY (continued)—
action for death of husband, wife or kindred, 680.
damages in such cases, 681.
Lord Campbell's act, 681.
rights concerning dead, 681.
PARENT AND CHILD, 671.
parental duty, 673.
rights of illegitimate child, 674.
mother entitled to custody of illegitimate, 676.
right to custody and control, 675.
control of step-children, 676.
duty to step-children, 676.
father qualified, right to custody of child, 676.
duty to support child, 674. ,
cannot charge child's estate for support, 686.
duty of education, 674, 675.
education, right to enforce, 675.
parent’s right to punish, 632, 677.
action for enticing away child, 679.
actions for wrong to female child, 678, 680.
basis of the rule, damages in such cases, 680.
action for injury to child, 678, 679.
damages in such cases, 678.
children, obligation to support parents, 675.
TEACHER AND PUPIL.
teacher stands in loco parentis, 677.
when control begins and ends, 677.
teacher’s right of correction, 677.
GUARDIAN AND WARD.
nature of relation, 683.
who subject to guardianship, 683, 684.
guardian, testamentary, rights of, 688.
classes of, 684.
may be nominated by parent before death, 684.
duties of, 684.
how appointed, 685.
authority of, 685.
a trustee, not an agent, 686.
must exercise highest degree of care, 686.
right to ward's property, 686.
must render account, 687.
ancillary by comity, 686.
removal of, 687.
guardianship, how terminated, 687.
APPRENTICESHIP — ,
quasi-domestic relationship only, 688.
nature of relation, 688.
regulated by statute, 688.
1186 INDEX.
References are to pages.
DRUMMER TAX CASES (see INTERSTATE COMMERCE), 344, 345.
D'UE PROCESS OF LAW –
what is, 251, 1029, 1056.
requires notice of hearing, 1029.
not necessarily judicial process, 281, 283, n.
may be administrative process, 281, 283, n.
under military and martial law, 410.
in eminent domain proceedings, 473.
in revenue cases, 282.
in equity cases, 1047.
DUPLICITY (see PLEADING).
DUTIES (see TAxATION, INDIRECT)—
none on exports, 821.
E.
EASEMENTS (see REAL PROPERTY).
ECCLESIASTICAL LAW (see LAw).
IELECTION —
to take under will, 1020.
doctrine and elements of, 1020.
ELECTION OF PARTIES —
essential element of, 815.
JELECTION OF REMEDIES –
in procedure, 1062.
under interstate commerce act, 364.
in case of conversion by bailee, 892.
ELECTIONS — -
apportionment of state, jurisdiction of judiciary in, 286.
EMBARGO —
power of congress to impose, 341.
validity of, 342.
a prohibition, 342.
war measure, 342, 343.
JEMINENT DOMAIN —
basis of its exercise, 467.
must be for public purpose, 468, 472.
must be with compensation, 469.
who may exercise, 470.
over navigable waters, 471.
what is public purpose, 472.
proceedings do not exclude common law remedy, 474.
procedure for exercising, 473.
‘compensates for necessary damage, 474.
measure of damages, 475.
"INDEx. 1187
References are to pages.
EQUAL PROTECTION OF THE LAW —
meaning of, 612, 618, 620, 623.
RQUALITY —
basis of civil liberty, 4.
effect of upon sovereignty, 174.
declaration of, destroyed personal sovereignty, 178.
before the law, 612.
fundamental principle of constitution, 614.
in Declaration of Independence, 620.
EQUITY —
older than law, 1039.
a part of common law, 256, 1040, 1042, 1053.
as a law maker, 1039.
an essential branch of jurisdiction, 1042.
gradually becomes law, 1040.
among the Saxons, 30, 1039, 1041.
after Norman conquest, 1041.
time of Edward I., 1042.
ancient definition, 1038.
and law, contrasted, 1038.
yet distinct in code states, 1114.
distinctions between, 1057, 1058.
originally a matter of grace, 1042, n.
legislature acting in lieu of court of, 280, n.
nature of modern, 1054.
as a jurisdiction, 1053.
in America, 1051.
in original states, 1052.
New York, 1052,
Massachusetts, 1052,
Pennsylvania, 1052.
CHANCERY THE COURT OF EQUITY –
when a court of conscience, 812.
the ancient chancellor, 1043.
judicial authority of, 1043.
ancient jurisdiction, 1044.
practice, rise of, 1050.
origin of equitable jurisdiction, 1041. t
creation of as a court, 1041, 1045.
rise of, 1043.
as a separate court, 1046.
why created, 1046.
earliest resort to, 1046.
now a common-law court, 1040.
a settled organized procedure, 1054.
JURISDICTION —
scope of, 1036, n. 3, 1037, 1045.
concurrent in law and equity, 1072.
1.188 INDEX,
References are to pages,
EQUITY (continued)—
JURISDICTION (continued)—
basis of, 1053.
inadequacy of legal remedy, 1068.
** heads of, 1066.
fraud, accident, mistake, trust, 1066.
fraud, 1067.
how treated in equity, 1067.
broad meaning in equity, 1067.
mistake, 1068.
misrepresentation, 1068.
subjects of jurisdiction, see next sub-title.
personal rights, 1066, 1087.
trusts, 1066.
uses and trusts, 997.
corporations, 585, 1100.
ACTIONS IN —
forms of—
to collect money, 1073.
creditors’ bills, objects of, 1076.
accounting suits, 1074.
foreclosure of mortgages, 1077.
contribution and subrogation, 1078.
specific performance, 1078.
divorce, jurisdiction over, 1079.
cancellation of contracts and conveyances, 1079.
reformation of obligations, 1079.
equitable ejectment, 1079.
to obtain new trials, 1050.
bills of review, 1080.
guia timet, nature of bills, 1081.
to remove clouds, 1081.
to control trusts, 1083.
injunctions against waste, 1083.
perpetuation of testimony, 1083.
bills of peace, 1083.
to protect charities, 1084.
to test and construe wills, 1084, 1085.
abatement of nuisances, 1085.
injunction against strikes and boycotts, 1086.
to enforce liens, 1086.
to dissolve partnership, 1087.
partition proceedings, 1087.
to administer estates, 1087.
bill of discovery, 1088.
bill of revivor, 1088.
CONDITIONS OF RELIEF, 1069.
clean hands, 1069.
diligence required, 1069.
INDEX. 1189.
References are to pages.
EQUITY (continued)—
CONDITIONS OF RELIEF (continued)—
laches, 1069.
equity aids the vigilant, 1070.
limitations, laches and acquiescence distinguished, 1070.
JURY TRIAL IN —
verdict, when conclusive, 1084.
DECREES IN, 1082.
will not directly affect legal titles, 1038.
nor decree title, 1081, 1082.
will make personal money decree, 1070, n.
damages not direct object of suit, 1073.
once attaching, complete relief, 1070, 1088.
will execute its decrees, 1079.
WRITS AND PROCESSES —
original process, 1089.
preliminary injunction, 1090.
writ of me eaceat, 1089.
writ of assistance, 1091.
writ of execution not an ancient process, 1091.
writ of restitution, 1091.
RECEIVERS —
appointment of, 1090.
officer of the court, 1090.
qualification of, 1090.
ESTRAYS, 889.
at common law, 282.
EVIDENCE —
defined, 1131.
development of law of, 1131.
scope of subject, 1131.
rational system essential, 1130.
basis of modern system, 1132.
theory of modern, 1132.
fundamental principles of trial by, 1132.
law may be part of substantive law, 1181.
rules of, controlled by constitution, 1132.
due process of law requires settled system of, 1180.
when eac post facto law affects, 1181.
legislative control over, 1133.
public policy; changing nature of, 1139.
universality of general rules, 1133.
classification of rules, 1132,
branches of subject, 1133.
object of, 1130.
controlled by issue, 1109, 1131.
allegata et probata required, 1131.
fact in issue defined, 1134, n.
T190 INDEX.
References are to pages.
EVIDENCE (continued)–
RELEVANCY —
legal and logical, 1134, 1187, 1138.
allegation limits orbit of inquiry, 1109.
res gestoe and transaction synonymous, 1136.
transaction defined, 1134.
the maxim res inter alios, etc., explained, 1137.
who are parties and privies, 1137.
limited by remoteness, 1185. * *
degree of proximity or remoteness a question of judicial discre-
tion, 1137.
COMPETENCY —
principles of exclusion, 1137.
competency defined, 1135.
relevancy, materiality, competency, distinguished, 1135.
materiality defined, 1135.
declarations, when admissible, 1137.
similar but disconnected facts, when admissible, 1138.
hearsay evidence defined, 1136.
hearsay, if res gestoe, admissible, 1136.
logical principle of exclusion, 1137.
BURDEN OF PROOF —
meaning of, 1142.
shifting of, 1142, 1143.
GRADES OF EVIDENCE —
primary and secondary, 1139.
what is, 1139.
best always required, 1138.
what is, of contracts, 728.
parol, of written contract, inadmissible between parties, 1139.
rule binds only parties, 1138, 1139.
applies only to documents in issue, not to collateral documents,
1139.
INSTRUMENTS OF PROOF, 1138.
judicial notice, 1138.
not taken of ordinances, 551, n.
presumptions, 1144.
basis of, 1144.
circumstantial evidence and presumptions, similar, 1144.
classes of, 1144, 1145.
operation of, 1144.
PRACTICE IN PRODUCTION OF, 1140.
practice on objections to, 1135.
saving exceptions to rulings, 1185, 1136.
objections, when specific, 1136.
objections to competency, how made and preserved, 1142.
WITNESSES —
competency of, 1139.
privileged communications, 1140.
INDEX. 1191.
References are to pages.
EVIDENCE (continued)—
WITNESSES (continued)—
Specific objections as to, 1142.
privilege of witnesses, 1142.
before interstate commerce commission, 364.
competency of parties, 1139.
competency of interested persons, 1189. \
incompetency of parties to negotiable paper, 1140.
competency of husband and wife, 1140.
statutes removing disabilities, construction of, 1140.
subpoena duces tecum, 1141.
swearing of witnesses, 1141.
direct examination, 1141.
leading questions, 1141.
cross-examination, 1141.
cross-examiner, when bound by answer, 1141.
redirect examination, 1142.
QUANTITY OF PROOF, 1143.
civil issues determined on probabilities, 1143.
quantity in criminal cases, 1143.
quantity where crime alleged, 1143.
reasonable doubt, what is, 1143.
how weighed by court or jury, 1145.
EXCISES (see TAXATION, INDIRECT).
EXECUTION –
common-law writ of, 252.
the elegit of the law courts, 1091.
against partner's interest in firm property, 832.
mode of levy on partner’s interest, 833.
when awarded in equity, 1091.
EXECUTIVE AUTHORITY –
in England, 57.
of the nation, 359, 421. -
must be granted by constitution, 477.
quasi-judicial power, 280.
national subordinate officers, 433.
EXEMPTIONS —
validity of, 393.
EXPATRIATION –
right of, 186.
EXPORTS —
may not be taxed, 321.
EXPOST FACTO LAWS, 48.
prohibited, 452, 616.
defined, 453, 454.
EXTRADITION -—
requisite of charge, 1095.
1.192 } INDEX.
-
References are to pages.
IEXTRAORDINARY REMEDIES —
appellate nature of, 1093.
why so called, 1093.
no longer prerogative in nature, 1093.
F.
TALSE IMPRISONMENT –
liability of military officer, 434.
FEDERAL COURTS (see CourTs) —
no common-law jurisdiction, 250.
how far governed by common law, 250, 251.
FELLOW-SERVANTS (see MASTER AND SERVANT).
FERRY — -
nature of, 996.
IFEUDALISMI —
rise of, 16.
extent of, 20.
Saxon and Norman contrasted, 27.
in America, 958.
FEUDAL SYSTEM —
of government, 19.
spirit of, 26.
FEUDAL TENURE (see REAL PROPERTY) —
meaning of, 21.
FINANCE (see MoMEY).
TINDING —
what constitutes, 889, notes 2, 3.
IFINE —
in real property law defined, 995.
IFISHERY —
franchise of, 995, n.
IFISHING —
common right of, 702.
FOLFC MOTE —
germ of Saxon free state, 508.
a Saxon court, 1041.
FORMER ADJUDICATION (see RES ADJUDICATA).
FORMS —
importance of, 1025.
FORMS OF ACTION (see ACTIONs; EQUITY)—
meaning of, 1047.
establishment of, 1047.
utility of, 1054.
essential to orderly procedure, 1060. -
required by rule requiring definite theory of case, 1060.
INDEX. a 1193
References are to pages.
FOURTEENTH AMENDMENT —
text of, 605.
guarantees life, liberty and property, 615.
importance of, 617, 618.
extends to all persons, 1026.
FRANCHISE (see CoRPORATION; REAL PROPERTY)—
how obtained, 270.
corporate, defined, 271.
the elective, 271.
of fishery, 702.
FRAUD (see CONTRACT; SALES)—
in purchase of chattels, 873.
fraud as a defense, 1068.
FREEHOLD —
origin of term, 976.
GAIUS, 11.
GAMBLING —
illegality of, 782, n.
GENERAL AND SPECIAL OCCUPANT—
who is, 979.
GOVERNMENT —
defined, 164, 259, n.
representative in Greece, 1.
conflicting views on the basis of, 3.
basis of popular, 3.
created by society, 258, 259.
established by constitution, 259.
condition of, in feudal England, 33.
rise of science of, 30.
early views of, 45.
American ideas of, 51.
science of, in America, 59.
a delegation, not a grant of power, 258.
Blackstone’s idea of, 324.
British and American contrasted, 272.
meaning of, 258, 435.
personification of, 262.
change of, effect on law and rights, 229.
republican form described, 190.
United States, not democratic, 191.
self, fundamental principles of, 201.
objects of, 433, 1025.
secures rights, 147.
damarcation between state and national, 77.
1194 INDEX.
References are to pages.
GOVERNMENT (continued)—
of law, 201, 240, 358.
defined, 433.
by injunction, 358, 359.
NATIONAL, 258.
nature of, 258, 274.
one of enumerated objects, 438.
objects of, 309, 310. •
acts through departments, 262.
extent of authority, 262.
limited by the constitution, 304.
has only granted powers, 262.
express and implied powers, 300.
extent of powers granted to, 304.
inherent powers of, 201, 274, 304, 306.
inherent and implied powers of, 313.
power to tax, 319.
co-ordinate departments of 272, 1026, 1028.
legislative, executive, judicial, 276.
interdependency of, 278, 279, n., 285.
constitute a system of checks and balances, 285.
partition of powers, 272.
reasons for, 275. "
separation not complete, 277, 278.
itself a limitation, 278.
STATE GOVERNMENT, see STATE,
GOVERNOR —
nature of office, 477.
his corporate capacity, 479.
succession to office, 479, n.
mere executive officer, 478.
his participation in legislation, 480.
official discretion, 482.
nandamus lies against, 482.
connection with local boards, 481.
power of appointment and removal, 480.
pardoning power, 482.
LIEUTENANT-GOVERNOR, 479.
GREECE –
representative government in, 1.
GTJARANTY AND SURETY SHIP-
defined, 917.
distinguished, 918, 919.
GUARANTY —
notice of acceptance, 919.
requisities of contract, 920.
of future acts, 920,
INDEX. 1195
References are to pages.
GUARANTY AND SURETYSHIP (continued)—
GUARANTY (continued)—
forms of, 923.
scope of contract, 923.
application of statute of frauds, 921.
SURETYSHIP —
a collateral agreement, 921.
to valid original obligation, 924.
rights after default, 924.
subrogation after payment, 924.
right to indemnity, 925.
indemnity embraces all securities, 925.
right to contribution, 925.
rights and remedies between, 925.
GUARDIAN AND WARD (see DOMESTIC RELATIONS).
EI.
HABEAS CORPUS —
power to suspend use of writ, 412.
suspension of, 616. º
nature of, 1093, 1094.
secured by bill of rights, 1094.
Questions in, 1095.
object of the writ, 1094.
procedure in, 1094.
HEIRS —
defined, 1012.
of body, 1014.
HEREDITAMENTS –
defined, 959.
classes of, 959.
corporeal, 959.
incorporeal, 959.
use of term, 960.
HIER ARCHY —
Roman, 16.
HIGH SEAS, 367.
IHIRING OF CHATTELS (see BAILMENTS).
HOMESTEAD TAWS —
liberally construed, 986.
objects of, 986.
and pre-emption laws, 970.
HOMICIDE —
justifiable, 611.
HOTEL AND INNECEEPER –
who is, 896.
restaurant keeper not, 896.
1196 - INDEX.
References are to pages.
HOTEL AND INNKEEPER (continued) —
guests and boarders, who are, 896.
boarder and guest distinguished, 897.
duty to receive guests, 907.
right to discriminate against guests, 907.
duty to guests, 907.
liability to guest, 897.
who considered travelers, 896.
diligence for safety of guest, 907.
lien of, 898.
HOUSE OF COMMONS —
rise of, 34.
a new estate, 34.
BIOUSE OF T.ORDS —
not a representative body, 289.
HOUSE OF REPRESENTATIVES —
constitution of, 291.
qualification of members of, 291.
organization of, 293. sº
exclusive powers of, 294,
HUNTING —
right of, 703.
IHUSBAND AND WIFE (see DOMESTIC RELATIONs)—
modern law of, 667.
husband’s liability for wife's debts, 667.
necessaries defined, 716.
contracts between, 669.
ante-nuptial contract, 663.
articles of separation, 669.
wife's action for alienating husband's affections, 669.
wife's interest in husband, 669.
wife's right to maintain action of crim. con., 670.
I.
IMPEACEIMENT –
of United States officers, 295.
power of senate to try, 295.
IMPOSTS (see TAxATION, INDIRECT).
INCOME TAX CASE, 329, 332–334.
INCUMBRANCE –
easement of highway not, 1016, n.
INDEBITATUS ASSUMPSIT, 796, n.
INDIAN TRIBES —
status of, 234.
INDEX. 1197
References are to pages.
INDIANS —
status of, 235, n., 600, 601.
may become citizens, 535.
INDICTMENTS (see CRIMINAL LAw).
INDIRECT TAX (see TAx) —
collection of, 337.
INFANTS —
power to contract, 709.
liable for torts, 710.
contracts, when and how avoided, 711.
liable for necessaries, 712.
INHERITANCE TAXES, 334.
INJUNCTION —
where remedy at law, 359.
practice for granting preliminary, 1090, n.
maintains statu quo during litigation, 1091.
interlocutory, 1090.
master may recommend, 1101.
interlocutory injunction always prohibitory, 1090.
prohibitory and mandatory, 1091.
government by, so called, 35S.
against sudden quitting of public employment, 361, n.
against laying tracks in street, 359.
against strikes and boycotts, 359, 360.
against libels, 1086.
to protect public right, 1091.
against trespass, 1085.
against crime, 361, n.
IN PARI DELICTO —
defined, 785.
INSANITY (see CONTRACTs, sub-head Parties).
INSOLVENCY (see BANKRUPTCY).
INSTITUTES OF JUSTINIAN, 12.
analysis of, 13.
method of the, 75.
INSTITUTIONAL WEITERS –
method of, 39.
INSURANCE —
nature of, 909.
contracts, not within interstate commerce, 344.
similarity to wager, 910.
when wagering, 781.
insurable interest, 797, 911.
classes of, 912.
the application, 914.
form of contract, 914.
representations and warranties, 914.
1198 INDEX.
& References are to pages.
INSURANCE (continued) —
conditions and covenants, 915.
suit against person causing loss, 917.
subrogation of insurer, 917.
BOTTOMRY BOND —
nature of, 910.
construction, 910.
what necessity justifies, 910.
limit of liability, 910.
RESPONDENTIA —
nature of, 910.
FIRE —
the survey in, 915.
the policy or certificate, 915.
change of title avoids policy, 915.
temporary prohibited use, effect of, 915.
rescission and change in policy, 916.
TIFE —
suicide, effect on liability, 915.
meaning of sanity, 916.
fraternal Societies, 912.
INTERNAL IMPROVEMENTS, 413.
power to make, 414.
INTERNAL REVENUE (see TAxATION).
INTERPLEADER –
bill of, 1082.
bills in the nature of, 1082, n.
INTERPRETATION —
defined, 301.
constitutional, development of, 298.
of constitution, antagonistic method of, 299.
true method of, 304.
INTERSTATE COMMERCE (see CoMMERCE)—
regulation of, 340.
and interstate contracts distinguished, 344.
congress supreme over, 346.
five phases of, 346.
Original package cases, 350.
interstate commerce act, 361.
scope of act, 362.
uniform rates, 363.
long and short haul, 363.
joint traffic contracts, 363.
freight pools, 363.
unjust discriminations, 363.
regulating charges, 363.
INTERSTATE COMMERCE COMMISSION —
power and duty of, 364, 365.
nature of power, 365.
INDEX. 1199
References are to pages.
INTERSTATE COMMERCE (continued)—
INTERSTATE COMMERCE COMMISSION (continued)—
jurisdiction, 365.
co-operative jurisdiction of federal court, 365.
power to compel evidence, 366.
decisions not final, 366.
INTERSTATE DIVORCES (see MARRIAGE), 659.
conflict of law, 660.
how far valid, 659.
INTESTATE SUCCESSION (see REAL PROPERTY, sub-head Title).
INVOLUNTARY SERVITUDE –
thirteenth amendment destroyed, 615.
ISSUE –
an essential in procedure, 1028.
out of chancery, 1044.
J.
JOINDER (see PLEADING).
JOINT-STOCK ASSOCIATIONS —
nature of association, 563.
of ownership, 829.
distinguished from other forms of association, 563.
JOINT TENANT (see REAL PROPERTY; PARTNERSHIP).
JOINT TRAFFIC ASSOCIATIONS –
illegality of contracts, 778.
JUDGE —
office and duty, 1030, 1110.
when regarded as, 1101.
JUDGMENTS —
so called, contracts of record, 707.
are obligations of record, 1080.
by consent, are mere contracts, 1080.
may be assigned, 803, n.
against public officers, 1094.
common-law execution under, 252.
when collaterally attacked, 1033.
for fraud, 1034.
presumptions in favor, 1033.
recitals in, 1034.
procured by fraud, canceled, 1080.
chancery jurisdiction over, 1080.
bills to set aside, 1080.
JUDICIAL ESTABLISHMENTS (see CourTS) —
in the colonies, 1051.
of the nation, 1095.
76
1200 INDEX.
freferences are to pages.
JUDICIAL I,EGISLATION —
improper, 253. -
illustrations of, 254. -
JUDICIAL NOTICE (see EvidENCE), 1138.
JUDICIAL OFFICERS —
liability to private actions, 528.
"JUDICIAL POWER (see Courts)—
in England, 285, n.
a check upon the legislature, 278.
necessity of separation from legislative, 275, 276.
nature of, 1027.
how delegated, 1096.
must be granted by constitution, 477.
how exercised, 1027.
performance of by legislature, 277.
to annul act of legislature, 286, 287.
providing political apportionment of state, 286.
quasi, of executive, 280.
of local Officers, 281.
JURA PERSONARUM (see PERSONs).
JURA RERUM (see THINGs).
JURISDICTION —
defined, 1034.
feudal idea of, 26.
Norman theory of, 30. º
new, in England, created only by parliament, 1048.
source of, in state courts, 1103.
original and appellate, 1035.
appellate, a check on trial court, 287.
courts have none over legislature, 286, 287.
discretion of trial court within, 287.
general and special, 1032, 1033.
of federal courts, 1033.
presumption as to, 1034.
in non-adversary actions, 1029–30.
in proceedings in rem, 1037.
over non-residents, 659.
CLASSIFICATION OF —
of subject-matter, 1034.
of parties, 1034.
of process, 1034.
OF THE SUBJECT-MATTER, 1033.
ascertained by pleading, 1108, 1109.
not conferred by consent, 1071.
concurrent in law and equity, 1072.
ECCLESIASTICAL–
how far allowed in America, 17, 257.
INDEX. 1201.
References are to pages.
JURISPRUDENCE —
includes science of government, 3.
ancient development, 12.
primary classification, 97.
defined, 72.
subjects of, 93.
JURY TRIAL –
how and why a constitutional right, 1046.
according to the course of the common law, 1056.
peculiar to British constitution, 1046.
in national courts, 1097.
in eminent domain proceeding, 473.
not required in equity, 1087.
except on issue devisavit vel non (did he devise), 1084, 1085.
required on contest of will, 1084.
JUS ACCRESCENDI —
the right of survivorship, 829, 830.
originally not applied to merchant traders, 830.
JUS AEQUUM, THE, 614.
JUS DISPONENDI —
defined, 970.
JUS IN PERSONAM (see RIGHTS).
JUS IN REM (see RIGHTS) —
origin of, 134.
meaning of, 139.
JUS PRAETORIUM, 246.
JUSTICE COURT —
ancient origin of, 1032.
jurisdiction largely by common law, 1033.
JUSTINIAN AND INSTITUTES, 12.
analysis of Institutes, 13.
R.
EING, THE –
power and jurisdiction, 57.
prerogative of justice, 1042.
could not create new jurisdiction, 1048.
could create courts, 1048.
the fountain of equity, 1042.
divine right of, 5.
a corporation sole, 263, 266.
extraordinary revenue of, 324.
T.
LAND (see REAL PROPERTY) —
product of, follows condition of, 328.
mineral, acquisition by government, 235.
LANDLORD AND TENANT (see REAL PROPERTY).
1202 INDEX.
References are to pages.
LAW (MUNICIPAL)–
definitions of, criticised, 83.
defined, 95.
of the United States, 202.
erroneous use of definitions, 88.
Finch’s view of, 40.
described, 262.
consent is basis of, 179.
development of, 3.
by equity, 256.
and equity, reasons for separation, 1046.
distinctions between, 1057, 1058.
equity a part of the law, 1053.
supremacy of, 202. -
government of, established, 201.
described, 240.
supreme, of land, what is, 241.
public and private, 100.
defined, 263, 475.
political and private, how affected by change of government, 229.
sources of, 241, 253.
not-made by legislature solely, 242.
customary, unwritten, 245.
unwritten, evidence of, 246.
judge-made, 253.
(CANON LAW, 17.
not part of American law, 257.
“COMMON LAW —
defined, 242.
development of, 246.
as a source of jurisdiction, 250.
adoption of, in America, 249.
national, 250, 251.
in federal courts, 250.
extent of, in United States, 250, n., 251.
constitutional interpretation by, 252.
TCCLESIASTICAL –
how far recognized in America, 257.
MARTIAL LAW —
defined, 256.
character of, 409, n.
when applied, 256.
'power to declare, 412.
improper resort to, 256.
TAW MERCHANT— ,
origin and extent, 243.
is the lea; mercatoria. 243.
part of common law, 243, 244.
ccharacter of, 248.
/
INDEX. * 1203.
References are to pages.
LAW (MUNICIPAL) (continued)–
MARITIME LAW, 247.
and law merchant distinguished, 248.
MILITARY LAW —
defined, 257.
who subject to, 409.
of the militia, 408.
application of, 257.
LAW OF NATURE, 10, 87.
slavery contrary to, 15.
LAW OF PERSONS –
defined, 105.
LEADING CASES —
establish rules and principles, 254,
LEASE (see REAL PROPERTY).
LEGAL ANALYSIS –
beginning of, 11.
in American jurisprudence, 63.
importance of, 65, 70. f
utility of, 66.
principles of, 73.
LEGAL TENDER CASES (see MoWEY)—
reasoning of, 310, 311, 376.
LEGALIZING ACTS –
validity of, 452.
LEGISLATION –
political, defined, 259.
creates magistrates, 263.
and civil distinguished, 511.
improper judicial, illustrations of, 253, 254.
STATE–
inherent limitations, 273, n.
constitutional, 285.
power of judiciary to annul, 286, 287.
necessity for limitations on, 444.
danger of ill-considered, 444.
joint resolutions as, 446.
special legislation, when valid, 475,
LEGISLATIVE GRANT—
a contract, 450.
LEGISLATIVE POWER –
nature of, 274, n.
necessity of separation from judicial, 275, 276.
derived from the constitution, 439.
grant of, to congress, 289.
in England, 285, n., 286, n.
of parliament, 57.
1204 INDEX.
References are to pages.
LEGISLATIVE POWER (continued)—
not absolute, 181.
not omnipotent, 436. ,
not supreme, 273.
is limited, 183.
OF STATES —
limitation on, 435.
natural limitations on, 436.
implied prohibitions, 437.
only delegated according to ancient customs and usages, 446, 448,
449, 450.
unlawful delegation of, 451.
cannot be abrogated and exhausted, 450.
relation of, to constitution, 261.
created by constitution, 442, n.
province of, 276, n.
may restrict existing remedies, 452.
OF NATION (see CONGRESS; CONSTITUTION; GOVERNMENT)—
must be organized, 442.
must have prescribed forms of procedure, 443.
LEX MERCATORIA (see LAW, sub-head Law Merchant).
LEX NON SCRIPTA (see LAw).
LIBELS —
when enjoined, 1086.
LIBERTY (see PERSONAL LIBERTY; PERSONAL RIGHTS)—
defined, 433, 512, n.
Athenian idea of, 4.
fundamental principle of, 4, 201.
civil, equality before the law, 4.
British liberty, 613.
under American law, 613.
religious, in America, 51, 628, 630.
includes governmental protection, 1026.
includes right to follow vocation, 459.
*LICENSE—
power of the state over business, 344.
in real property law, see REAL PROPERTY, 994,
LIENS (see EQUITY) —
of various bailees, 898.
LIFE —
not an absolute right, 610.
protection to, guaranteed, 615.
LIGHT —
as property, 694.
LIVERY OF SEISIN –
object of, 959.
INDEX. 1205
References are to pages.
LOAN OF CHATTELS (see BAILMENTS), 889.
LOCAL OFTION —
Constitutional, 447, 448.
HIOCAL SELF-GOVERNMENT —
by public and quasi-corporation, 486, 487, 491.
inherent in the people, 274, n.
fundamental principles of, 446.
indestructible by legislature, 447, 512, 513.
historical view of, 508.
requires definite local districts, 443.
conducted by public corporations, 487.
or by quasi-corporations, 505, 507.
renounced only by constitution, 448, n. 2.
extent of right, 446.
by municipal corporations, a right, 535, 537.
counties and townships, organic elements of, 510,
T.OUISIANA —
laws of territory of, 226.
M.
MAGISTRACY —
true basis of, 324.
distinguished from corporate capacity, 264.
MAGISTRATE AND PEOPLE, 154,
MAGISTRATE —
defined, 162, 164, 264.
in United States, 156, 263.
are artificial persons, 263.
credited by political legislation, 263.
personality of, 262.
distinguished from corporations, 270.
classification of, 156.
national and state, 157.
powers of national, 284, n.
THE PEOPLE, see PEOPLE,
MAGNA CARTA —
scope of, 32.
protects personal rights, 33.
of John, 619.
of Henry, 619.
similarity to fourteenth amendment, 619.
restrains summary process, 252.
provides for habeas corpus, 1094,
MAINTENANCE, 768.
MAJORITY (see CORPORATIONS) —
in legislative assemblies, 446.
1206 INDEX,
References are to pages.
MAN –
distinguished from person, 110.
MANDAMUS (see ACTIONS) —
a public writ, 1093.
called an extraordinary remedy, 1093.
is a civil action, 1093.
lies to compel public ministerial duty, 1093.
7mandamus to enforce corporation by-laws, 1094.
against federal officers, 432.
against governor, 482.
MARITIME LAW (see LAw)—
part of common law, 246.
part of law of nations, 247.
character of, 248.
MARRIAGE (see DOMESTIC RELATIONS)—
ante-nuptial contract, 663.
effect on wife's property, 666.
as transfer of property, 704.
nature of, 633.
whether mere contract or status, 634.
how contracted, 634.
characteristics of, 635.
allowed in all nations, 639.
is jure gentium, 643, 644.
valid everywhere if valid where made, 639.
state has power to determine validity, 639.
polygamous, contrary to public policy, 639.
when contrary to public policy, 640.
CAPACITY OF PARTIES, 637, 638.
disability from consanguinity, 638.
prohibited degrees of, 640.
disability from impotency, 638.
when void for incapacity, 638.
incestuous, void, 639.
affinity as disability, 640.
local prohibitions, 641.
HOW FORMED, 642.
where deemed mere civil contract, 647.
consent the essential thing, 638.
importance of intent, 636.
per verba de presenti, 643.
informal or common law, 634, 643.
common law, when not recognized, 647,
formal or ceremonial, 643, 644.
HOW CONSUMMATED, 636.
copulation not necessary, 644, n. 4.
INDEX. 120'ſ
References are to pages.
MARRIAGE (continued)—
PROOF OF –
\. common law, 644.
of fact of, 645.
instrument of proofs, 647.
English rule, 649.
presumptions favoring, 648, 650, 651.
evidence of repute, 652.
connubial habit, 652,
conduct as, 653.
DIvorce. AND ANNULMENT, 654.
annulment of marriage, grounds of, 655.
legislative divorces, 655.
MARRIED WOMEN –
status of, 664.
Married Woman’s Acts, 667, 668.
power to contract, 665, 668.
disability to contract, 665.
exceptions, 665.
capacity to sue, 1104.
cannot maintain action of crim. con., 670.
/
MARTIAL LAW (see LAw).
MASTER AND SERVANT —
NATURE OF RELATION, 843.
formerly created status, 631.
change in the nature of relation, 843.
no longer a status, 843.
purely a contractual relation, 843.
no menial servants now, 846.
THE CONTRACT OF HIRING, 844.
is personal, 845.
distinguishing feature of, 846.
validity of long term, 846.
compensation called wages, 845.
SERVANT —
distinguished from agent, 846.
from contractor, 847.
duty to master, 847.
obedience, 847.
loyalty to interests, 847.
may be restrained from divulging or using secrets, 847.
assumed risks, 851, 855.
care for self-preservation, 847, 850.
risk in dangerous employment, 850.
contributory negligence by, 857.
remedies against master, 858.
1208 INDEX.
References are to pages.
MASTER AND SERVANT (continued)—
MASTER —
duty toward servant, 848.
not an insurer of servant, 848.
what duties of cannot be delegated, 850.
to furnish safe surroundings, 847.
to furnish safe implements and machines, 848.
to select prudent fellow-servants, 849.
to select competent superintendent, 849.
to protect servant from danger, 849.
scope of employment, 851, 855.
separate departments of service, 856.
different lines of service, 857.
* master’s risk for extra-hazardous risks, 856.
FELLOW-SERVANTS —
origin of fellow-servant rule, 4, 250, n., 254, 851.
who are, 852.
the consociation test, 852.
vice-principal or alter ego, who is, 850, 853.
foreman, when, 853, 854.
(SERVANT's SUIT FOR COMPENSATION, 759.
suits for wages as such, 858.
for wrongful discharge, 759.
anticipatory breach of contract, 860.
guantum meruit, when allowable, 760.
strictness of entire contracts, 844.
sickness generally excuses full performance, 844.
wrongful discharge, measure of damages in, 760.
constructive service, 859.
successive suits for instalments falling due, 760, 859.
MASTER’s LIABILITY —
for act of servant, 860.
respondeat superior applies, 846.
for torts, 860.
within scope of employment, 860.
through wilful and malicious acts, 860.
STRANGER'S LIABILITY TO MASTER —
for interfering with servants, 845.
for enticing away, 845.
for inducing to break contract, 845.
MASTER IN CHANCERY (see EQUITY) —
may recommend injunction, 1101.
JMAXIMS —
a chose in action, e. g., a debt, cannot be assigned so as to vest in the
assignee a right of action upon it in his own name, 800,
actio personalis moritur cum persona, 136.
consensus non concubitus, facit muptias vel matrimonium, 637.
de minimis non curat lea, 1037.
INDEX. 1209
References are to pages.
MAXIMS (continued)—
eac turpi contractu actio mom oritwr, 764.
ignorance of the law excuses no one, 720.
£n pari delicto potiorest conditio defendentis, 874.
no person may be allowed to act where his interest and integrity con-
flict, 365, 769.
nothing is so consonant to natural equity as that every contract should
be dissolved by the same means which rendered it binding, 790, n.
potiorest conditio possidentis, 784.
gwi per aliwm facit per seipsum facere videtwr, 804, 846, 847.
zes inter alios acta, 653.
salus populi suprema lea, 342, 353, 456, 1025.
sic wiere two ut alienum, mom loºdas, 456.
wbi jus ibi remedium, 620, 789, n., 1027.
MECHANICS’ LIENS —
equity jurisdiction over, 1086.
MILITARY LAW (see LAW).
MILITARY POWER —
by whom exercised, 399.
MILITIA (see ARMY)—
extent and organization of, 400 et seq.
state and federal power over, 405.
position of state militia, 404.
always subject to call of president, 404, 405.
subject to call of congress, 405, 406.
MINERAL LANDS —
acquisition by government, 235.
MINING PARTNERSHIPS, 562,
MINISTERIAL DUTY – |
defined, 432.
MINORITIES —
relation to people and states, 190.
MISREPRESENTATION –
in contracts, 1068.
MISTAKE (see EQUITY)—
in contracts, 1068.
MONEY (see CURRENCY)—
power of congress over, 372.
meaning of, 376, n.
different use of word, 378. \
coin not the only, 378.
not necessarily legal tender, 378, 379.
power to create, 378.
coining of, defined, 378.
adopting standard of value, 380.
regulating value of foreign coins, 378.
1210 INDEX.
References are to pages.
MONEY (continued)—
international standard of value, 381.
standard of value, how adopted, 380, 381.
metals the common standard of value, 381.
gold the common standard, 383, 384.
ratio of value —
history of, 382.
between metals, 384, 385.
how borrowed by nation, 372, 373.
paper money, constitutionality of, 375,
as legal tender, 376.
legal tender currency —
not a mere war measure, 377.
devised as a means of borrowing, 380.
MONOPOLIES –
prohibited by Magna Carta, 774.
defined, 777. f
nature of, 778.
usually accomplished by combination contracts, 778.
MORALITY —
strictly enforced in fiduciary relation, 811.
a relative term, 812.
when unenforceable, 1037, n.
MORTGAGE (see REAL PROPERTY)—
OF CHATTELs, 878.
definition, 879.
at common law, 879.
are species of conditional sales, 879.
distinguished from pure conditional sale, 879.
possession of chattels, 879.
and pledge distinguished, 880.
by parol proof of, 880.
what may be mortgaged, 881.
identity of chattel, 881.
description of the chattels, 881.
delivery of the chattels, 882.
delivery and acceptance of, 882.
recording, 882.
mortgagee's title, 883.
by partners, 883.
MULTIFARIOUSNESS (see PLEADING; PARTIES).
MUNICIPAL BONDS —
must rest on public authority, 443.
estoppel by recitals in, 561.
MUNICIPAL CORPORATIONS —
are pure corporations, 505.
quasi-corporation distinguished from, 506.
definition, 535. *
INDEX. 1211
References are to pages.
MUNICIPAL CORPORATIONS (continued)–
ancient cities, 488.
not primarily political organizations, 514.
how incorporated, 545, 546.
character of charter, 546.
creation and destruction of, 514, 515.
not created solely by legislature, 538.
- can only be created by consent, 536.
acceptance of charter essential, 537.
OBJECT OF ORGANIZATION, 505.
instruments of local self-government, 507.
a governmental agency, 514.
is an agency of the state, 552.
represents its locality, 535.
relation to state, 556.
legislative power over, 588, 539, 540, 541.
revocation of charter by state, 543.
revocation of governmental authority, 544, 545.
control of, by state, 536.
immunity from legislative destruction, 538.
entitled to local self-government, 540.
change of boundary, 544.
POWERS OF —
classes of charter powers, 502, 547, 548.
expressed and implied, 521, 546.
test of, 558, 559.
of legislation, 505.
the police power, 551.
to regulate and license business, 552.
extra-territorial, 551.
may be trustee, 534.
control over public grounds, 553,
over streets, 553, 554.
grants of franchises in, 554.
to change street grade, 554.
may take mortgage, 560, 561.
taxing power, 555.
for public purposes only, 555.
to aid public works, 464.
mode of exercising, 550.
legislative body of, 550.
executive officers of, 553.
mode of enacting ordinances, 550.
contracts with aldermen, 770.
with mayor, 770.
f_IABILITY TO ACTIONS.– A
not, on implied contract for mere benefits, 525,
respondeat superior applicable to cities; 548.
exemption from private actions, 550.
1212 INDEX.
References are to pages.
MUNICIPAL CORPORATIONS (continued)–
LIABILITY TO ACTIONS (continued) —
not liable for official exercise of governmental powers, 552.
for consequential damage, 554.
for personal torts, 557.
execution cannot issue against, 550.
N.
INATION —
inherent powers of, 306.
over objects not withdrawn from state exercise, 309.
NATIONAL BANKS —
objects of, 372.
constitutionality of creation, 373, 876.
utility of, 373.
state cannot inflict penalty, 373.
Cannot tax, 374.
NATIONAL REVENUE (see TAxATION)—
sources of power for, 315.
NATURAL LAW (see LAw)—
obsolete doctrine of, 2, 10.
NATURAL PERSONS —
means individuals, 599, 600.
NATURALIZATION —
how accomplished, 606.
NAVIGABLE WATERS —
defined, 367.
inland lakes, 368.
running streams, 369.
navigable in fact in question, 369, 370.
streams within a state, 370.
ownership of state, 471.
title to bed of, 702.
INAVIGATION —
included in commerce, 344.
an instrument of commerce, 344,
English navigation acts, 53.
NAVY —
organization of, 400.
NE EXEAT, 1089.
NEGLIGENCE —
liability of towns for, 522.
contributory, 858.
as answer to defense of fraud and circumvention, 733.
degrees of, 858, 906.
origin of distinction, 858.
comparative degrees of, 255, 1027.
INDEx. " 1213.
References are to pages.
NEGLIGENCE (continued) —
of fellow-servant, 254.
in intrusting another with dangerous implement or substance, 860.
presumption from injury to passenger, 908.
NEGOTIABLE INSTRUMENTS, 925.
new law of, 927.
distinguished from other choses, 928.
negotiability and assignability distinguished, 925, 926.
origin of negotiability, 926.
a commercial invention, 926.
negotiability implies —
privity, 930.
between remote holders, 929, n. 3.
facility of transfer, 931.
freedom of circulation, 931.
promissory notes, originally not negotiable, 929.
new law of, 927.
statutory negotiability, 929.
words of negotiability, 928.
SPECIES OF —
bank notes, 934.
bill of exchange, 934.
inland and foreign bills, 935.
city warrants, 934.
bonds and stocks, 934,
checks, 934.
check defined, 950.
use of checks, 948.
as assignment of funds, 950.
promissory notes, 934.
defined, 935.
bills of lading, 936.
quasi-negotiable paper, 936.
origin of negotiability, 937.
form of, 937.
letters of credit, 943,
PARTIES TO, 938, 939.
bills of exchange, 934.
promissory notes, 936.
boma fide holder, 931.
holder in due course, 932.
indorsee defined, 935.
acceptor, 938.
obligations of various parties, 937, 939, 940.
presumptions from signing, 937.
contracts of parties, 938.
liability for wrongful negotiation, 931.
defenses to actions on bills, 932.
1214 INDEX.
References are to pages.
NEGOTIABLE INSTRUMENTS (continued)–
PARTIES TO (continued)—
peculiar privileges accorded, 930.
favoring presumption, 931.
of corporation payable to officer, presumptions in, 591.
consideration necessary between original parties, 938.
except on accommodation paper, 933.
notice of infirmity, 932. *
when void and voidable, 932, 933.
equities, what are, 934.
duress does not defeat negotiable paper, 933.
fraud, effect on negotiable paper, 933.
fraud and circumvention differs from mere fraud, 933.
renders void, 933.
usury paid, regarded as part payment pro tanto, 931.
when recoverable back, 931, n.
PRESENTATION OF BILL FOR ACCEPTANCE, 941,
delivery for acceptance, 941.
presentment excused, when, 942.
acceptance of, 942.
dating acceptance, 943.
acceptance Supra protest, 943.
acceptance for honor, 943.
PROTEST AND NOTICE, 944.
form of protest, 945.
PRESENTATION FOR PAYMENT, 946.
when and where, 946, 947.
maturity defined, 946.
demand of payment, when and where, 948.
INEW TRIAL – e
when procurable in equity, 1080.
NEXT FRIEND (see PARTIES)—
cannot waive rights, 710.
NOBILITY —
granting title of, prohibited, 616.
NOTICE –
jurisdictional in adversary actions, 1029.
not always necessary, 1029.
NUDUM PACTUM (see CoNTRACTs, sub-head Consideration) —
introduced from civil law, 745.
NUISANCE –
defined, 1085.
private actions, 1085.
abatement by individual, 359.
abatement of, in equity, 1085.
by injunction, 1091.
NULLUM TEMPUS OCCURRIT REGI, 965.
INDEX. 1215
References are to pages.
O.
OBLIGATIONS —
common-law meaning of, 141.
how they arise, 138.
anomalous, 138.
and remedies, complex nature of, 129.
remedy distinguished, 788.
and right distinguished, 131.
relation of, 133.
not generic terms in American law, 137.
correlative terms, 140.
use of distinction, 142.
species of, 138.
OBLIGATION OF A CONTRACT —
nature of, 141.
defined, 786.
origin of clause in constitution, 787, n.
does not restrain congress, 394.
above legislative authority, 450.
states cannot impair, 787.
survives execution, 788.
requires remedy, 788, 789.
remedies may be changed, 392.
does not require preservation of all remedies, 392.
does not prohibit exemption laws, 392, 393.
OFFICERS (see MAGISTRATES)—
defined, 164.
civil, defined, 295.
perpetual succession of public, 265.
OFFICES (see REAL PROPERTY), 960.
OFFICES, PUBLIC —
when incompatible, 292.
OFFICIAL POWER –
delegation of, 261.
not a personal right, 182.
conferred by constitution, 262.
always artificial, 265.
OPTIONS —
how far valid, 781.
ORDINANCE OF 1787–
nature and effect of, 213.
relation to constitution, 213.
inoperative as to state upon admission, 214.
ORIGINAL PACKAGE (see INTERSTATE COMMERCE)—
various phases and cases, 350.
changes of doctrine, 346, 354.
\
77 a"
1216 INDEX,
References are to pages.
ORIGINAL WRIT (see THEORY) —
origin and function of, 1043.
framing of, 1049.
OWNERSHIP (see PROPERTY) —
does not imply right to devise, 335.
P.
PARENS PATRIAE —
state as, 677.
rights over infants and mom compos persons, 678.
meaning of, 1068.
equity court exercises it, 1087.
PARENT AND CHILD (see DOMESTIC RELATIONS).
PARLIAMENT —
the English convention, 50.
is British government, 272.
jurisdiction of, 48.
legislative power, 54, 57, 272.
power over colonies, 54.
power over American colonies, 175.
resisted by, 176.
as a court, 58.
so-called omnipotence of, 58.
peculiar laws and privileges of, 58.
TJnited States government compared with, 272.
congress not modeled after, 288.
PARTIES TO ACTIONS —
real party in interest must sue, 803.
who is, 1100, 1104.
determines jurisdiction, 1100.
privies may be sued, 1104.
are third persons beneficially interested, 794,
how constituted, 1104, n. 5.
mon compos persons sue by next friend, 710.
voluntary societies as, 1105, n.
how they sue, 1105.
JOINDER OF —
code and common-law rules stated, 1105.
principles of, same as in law and equity, 1107.
misjoinder defined, 1105.
non-joinder defined, 1106.
on insurance policies, 1104.
torts are exceptional, 1104.
rule in, 1105.
in equity suits, 1106.
of non-consenting parties, 1105.
all persons affected by decree, 1106.
except where very numerous, 1105, 1106.
or beyond seas, 1106.
INDEX. 1217
References are to pages.
PARTIES TO ACTIONS (continued)–
JOINDER OF (continued)—
in equity suits (continued) —
not every one interested may be, 1107.
where numerous stockholders, 1106.
unborn persons, 1106.
multifariousness, 1063.
defined, 1107.
how objected to, 1107.
having common interest, 1104.
joint interest, 1104.
joint and several rights, how determined, 1105.
ELECTION OF PARTIES —
principles of, 815.
right to sue principal or agent, 815.
PARTITION —
statutory provision, 1087.
right to trial by jury, 1087.
in common-law courts, 1087.
removal of clouds in suit for, 1087.
where title is denied, 1087.
procedure in, 1087.
partition, parol, 1011.
PARTNERSHIP —
difficulty of definition, 819.
the relation swi generis, 835.
defined, 819.
distinguished from other forms of association, 819.
corporations, 819.
agency, 821.
ship-owners anomalous, 832.
mining, peculiarities of, 562.
relation always contractual, 820.
test of relationship, 820, 827.
ancient unreliable, 820.
participation in profits as, 822,828.
elements of relation, 821.
governing principle of relation, 823.
quasi-status or personality of, 824.
species of juristic person, 824.
the firm as a body, 825.
as an entity, 825, n.
name, 826.
may be changed, 827.
dormant partners, 821, 836.
special partnerships, 821.
agency of partners, 821, 835.
scope of authority, 837.
right to bind firm, 838, 839.
1218 INDEX.
References are to pages.
PARTNERSHIP (continued)—
liability of partners for torts, 839.
liability for illegal contract, 839.
duty of partners to firm, 837.
liability to firm for neglect, 837.
CHARACTER OF OWNERSHIP, 820, 833.
is joint, 820, 821.
nature of individual interest in joint estate, 826, 827, 834.
partner's lien on firm assets, 826.
when partners’ interests assignable, 829.
rights in trade-marks, 842.
good-will of the firm, 842.
execution against partners’ interests, 832.
real estate, how regarded, 831.
property primarily liable for partnership debt, 825.
creditor of firm must exhaust partnership property, 825.
effect of death of partners on property, 841.
the jus accrescendi, 829.
mortgage by partnership, 883.
SUITS BETWEEN PARTNERS, 842.
allowed in equity, 843.
jurisdiction, 1087.
DISSOLUTION —
by decree of court, 840.
grounds of, 840, 841.
effect of, 841.
PASSENGERS (see CARRIERs).
PATENT —
as a grant of land, 970.
PATENTS ON INVENTIONS –
power of congress over, 696.
nature of, 698.
what may be patented, 698.
what are inventions, 698.
infringements by federal officers, 1100.
jurisdiction of patent suits, 698.
PATER FAMILIAS, 632.
PEOPLE –
defined, 164, 169.
meaning of, 265.
identity of, 169, 194.
distinguished from state, 170.
OF THE UNITED STATES —
double aspect of, 182.
obtained supreme power, 176.
are the constituent body, 272.
capacity and power of, 170.
sovereignty of, 170.
in what sense, 199.
INDEX. 12.19
References are to pages.
1’EOPLE (continued) —
OF THE UNITED STATES (continued) —
relations to state and minorities, 190.
expressly limit their own power, 182.
how they bound themselves, 200.
all political action taken in name of, 187.
sanctioned constitution in adoption, 187.
voters are agents, not rulers of, 198.
OF THE STATES — (
identity of, 194.
limit their power by their constitutions, 200.
fundamental principles of government, 202.
PERSON, PERSONAE –
legal signification of words, 98, 100–102.
in civil law, 265, n.
equals status, 265.
the artificial attributes, 264.
distinguished from individuals, 598, 599.
partnership as, 824.
CLASSES OF, 161, 599.
natural, 600.
public, defined, 160.
denizens, defined, 603.
citizens, who are, 604.
of government, 264.
application of idea, 265.
PERSONAL LIBERTY —
new views of, 612.
immunity from self-incrimination, 366.
equality of right, 609.
PERSONAL RIGHTS —
defined, 598, 599.
when protected in equity, 1087.
life and liberty as, 609.
discriminations against woman, 624.
discriminations on account of race and color, 627.
PERSONAL SECURITY, 608.
against the state, 617.
PETITION OF RIGHTS, 47.
PILOT REGULATIONS, 346, 347.
PLEADING —
meaning of, 1107.
object of, 1108.
but one distinctive system of, 1107.
the common-law system, 1109.
value of knowledge of, 1114, 1115.
basis of code system, 1112, 1113, 1114.
basis of equity system, 1107, 1108, n.
1220 INDEX.
References are to pages.
PLEADING continued) -
THE ISSUE IN PLEADING—
origin of, 1108.
supplanted the litis contestatio, 1111.
result from a traverse, 1111.
the framing of, 1109.
uses of, 1108.
objects of, 1109.
utility of, 1110. &
universal use of, 1110.
formerly not used in equity, 1110, 1113.
adopted from common law, 1109.
in chancery, 1114.
required by codes, 1112.
how tried under codes, 1114.
CODIFICATION OF RULES —
by Henry John Stephen, 1111, n. 3.
common-law rules preserved, 1111–1115.
codes do not abolish, 1111.
but rest on, 1114.
EQUITY PLEADING —
ancient forms of, obsolete, 1114,
formerly unsystematic, 1115.
modeled after common law, 1115.
no finished system of, 1108.
fundamental rules of, 1169.
theory of suit essential, 1109. A
must be distinctly advanced, 1060, 1110.
may be changed by amendment, 1061.
affected by disuse of discovery, 1089.
discovery abolished by code, 1113.
forms of, 1112.
recitals in, 1112.
object of bill, 1112.
requisites of, 1113.
modes of allegation, 1115.
must be positive, 1115.
simple, direct statement of facts required, 1115.
admissions in, 1121.
implied, 1121.
by demurrer, 1121.
by default, 1128.
waiver of oath, 1113,
instruments of, 1119.
COMPLAINANT'S PLEADING —
bills in equity —
two-fold object, 1113.
relief and discovery, 1113.
INDEX. 1221
References are to pages.
PLEADING (continued) –
COMPLAINANT'S PLEADING (continued)–
bills in equity (continued) —
allegations in —
for relief, 1113.
for discovery and relief, 1113.
parts of, 1116.
structure of, 1117.
prayer for relief, 1118.
general office of, 1118.
alternative, 1118.
many processes prayed, 1064.
amended bill, 1119.
supplemental bill, 1119.
cross-bill, office of, 1121.
cross bill to cross-bill, 1120.
on information, 1119.
the replication, 1112.
T)EFENDANT's PLEADING, 1120.
may demur, answer and plead to different parts of bill, 1122.
office of answer, 1120.
demurrer, 1120.
an innovation, 1128.
improper exceptions to bill, 1120.
office of, 1121,
plea in, 1121.
several kinds of, 1127.
forms of defensive, 1122.
disclaimer, 1122.
defendant’s replication, 1122.
PLEDGE (see BAILMENTS).
POLICE POWER –
defined, 456.
basis of, 456.
object of, 348, 349.
exclusively in states, 347.
Congress has none within state, 354.
and commercial regulation distinguished. 340, 341.
subordinate to commercial regulation, 352, 353.
subject of, 456, 457 et seq.
interferes with contracts, 458.
may affect commerce, 347, 348.
internal trade, 355.
to regulate business, 459.
extent of, 459.
and interstate commerce conflict, 346.
original-package fallacy, 458, n. 1.
over contracts, employments, professions, 626.
1222 INDEX.
References are to pages.
FOLICE POWER (continued)–
quarantine laws, 348.
to regulate hours of labor, 460,
conditions of labor, 460.
trusts and combinations within, 461.
Sunday laws justified by, 461.
anti-trust law, 460.
POLITICAL LIBERTY –
meaning of, 615.
POLY GAMY (see MARRIAGE), 639.
POOLS AND COMBINATIONS, 356.
POSSESSION —
as notice of ownership, 1019.
POSTOFFICE DEPARTMENT, 413.
PRACTICE (see EQUITY; PLEADING).
PREAMBLE –
of constitution, 315.
PRECEDENTS —
establish principles, 247.
value of, 254.
PRESIDENT –
exercises executive power, 426.
eligibility, 426.
election of, 426.
tenure of, 426.
power not absolute. 402.
the cabinet his council, 430.
relation to law-making power, 427.
participation in legislation, 427.
power over reconstruction, 428, 429.
military authority, 428.
power of appointment and removal, 429.
pardoning power, 431.
power to create condition of war, 402.
power over army, 402.
power under military law, 434.
power to command state militia, 404, 405, 406.
may call out state militia, 405.
power under martial law, 434.
personal responsibility, 426.
civil liability of, 431.
for acts of subordination, 433, 434.
PRESUMPTIONS (see EvidFNCE).
IPRINCIPAL AND AGENT —
distinguished from master and servant, 803.
scope of subject, 803.
INDEX. 1223.
References are to pages.i
PRINCIPAL AND AGENT (continued)–
agent defined, 804.
nature of employment, 804.
who may be principal, 806.
who may be agent, 806.
object of the relation, 809.
APPOINTMENT —
modes of, 804.
formality of, 805.
del credere by express contract, 808.
evidence of authority, 805.
proof of relation, 804, 805.
CHARACTER OF AGENCY —
general, 806.
special, 808.
test of character, 807.
general and special, distinguished, 808.
general, defined, 808.
special, defined, 808.
bank cashiera, 810.
several species of, 806, 807.
SCOPE OF AUTHORITY, 808.
incidental powers of, 809.
authority distinguished from instructions, 810.
mode of contracting by agent, 806, 814.
duty of agent, 811.
a fiduciary relation, 811, 816.
highest good faith required, 812.
may contract with principal, 812.
may purchase from his principal, 812.
burden to show fairness of transaction with principal, 812, S13.
purchasing subject of agency, when valid, 813.
burden in such cases, 813.
becomes trustee by purchasing for himself, 817.
purchase from himself, void, 813.
PRINCIPALS —
liability to third persons, 814.
for acts of agents, 815.
wndisclosed, when bound, 804, 805. -
none can be shown to sealed contract, 738.
rights of, 816, 1104.
against third persons, 817. -
exception to the law of privity, 818.
doctrine of privity limits extent of rights and liability of, 818.
subject to equities, 818.
when undisclosed principal liable, 816.
right against agent, 816.
1224 INDEX.
References are to pages.
IPRINCIPAL AND AGENT (continued) —
AGENTS LIABLE –
to third person if principal not disclosed, 814.
to suit when principal beyond seas, 1104.
to principal for all profits, 817.
duty to account, 813.
dissolution of agency, 818.
T2RINCIPLES —
importance of, 955.
PRIVATE LAW —
Roman system, 10.
PRIVATE PROPERTY —
how taken for public use, 469.
importance of, 1025.
PRIVILEGES AND IMMUNITIES —
what are, 616, 618.
PRIVITY (see CONTRACT) —
doctrine of, 793,
one for whose benefit contract is made may sue on it, 794.
how it arises, 794.
conflicting doctrines of, 796.
modern rule, 794 et seq.
does not apply to covenants under seal, 795.
essential element of, 798.
based on interest in transaction, 796.
and trust distinguished, 796.
rules of, 797.
exceptions in law merchant, 818.
privity in blood, 796, 799.
PROBATE COURT (see CourTs)—
equity powers, 1087, n.
PROCEDURE —
proceedings in legal actions, 1125.
in Pennsylvania, 1052.
must be fixed and orderly, 1028.
legislature may change, 1029.
law and equity, why different, 1050.
reforms in, resumé, 1056 et seq.
EQUITY PROCEDURE, 1124.
change in modern rules of, 1124, 1125.
proceedings in a chancery suit, 1126.
dismissing the bill, 1126.
order of proceeding, 1126.
speeding the cause, 1126.
motions in chancery, 1127.
how made, 1121.
INDEX. 1225
References are to pages.
PROCEDURE (continued)–
EQUITY PROCEDURE (continued)—
rules misi, 1127.
defaults, origin of, 1128.
rights of defaulted defendant, 1128.
hearing the case, 1128.
jury trial in, 1128.
verdict of jury, 1128.
effect in equity case, 1084, 1085.
feigned issues in, 1128.
hearing before master, 1128.
reference to master, 1128.
order of reference, 1128.
the report, 1129.
exceptions to, 1129.
objections to, 1129.
practice on, 1129.
hearing before chancellor, 1129.
effect given finding of master, 1129.
decretal orders, 1129.
DECREES —
pro confesso, 1128.
several in one cause, 1130.
interlocutory or final, 1130.
when final, 1130, n.
operate in personam, 1130.
PROCEEDINGS IN REM —
are non-adversary, 1036.
PROCESS —
what is, 1029.
PROCHEIN AMI (see NExT FRIEND).
PROHIBITION —
against noxious business, 341.
and interstate commerce, 350.
constitutionality of, 351.
PROHIBITION, ACTIONS OF (see ACTIONs)—
nature of, 1093.
use of, 1094.
lies against inferior judicial officer, 1094.
to prevent unlawful assumption of power, 1094.
against judicial action by legislative body, 1094.
to courts-martial, 409.
as an appellate writ, 1094.
PROOF (see EvidFNCE).
PROPERTY —
meaning of, 110.
legal idea of, 117, 690.
defined, 126.
a species jus in rem, 140.
1226 INDEX.
References are to pages.
IPROPERTY (continued)—
thing and property distinguished, 690.
scope of the word, 691.
nature and origin of, 692.
created by society, 693, 694.
modern theory of, 692, 693.
SEVERAL RINDS OF, 694.
community property, 693.
acts may be, 691.
may embrace conduct, 691.
classes of, 692.
whether corpse is, 682.
in animals, 695.
air. 694.
water as, 694.
cattle, defined, 695.
dogs, 696.
common, 701.
OWNERSHIP (see REAL PROPERTY, sub-head Title)—
generally originates in contracts, 705.
possession as evidence of, 692.
land, origin of, 965.
modes of acquisition, 702.
possession as title, 693.
finding as a means, 693.
right of transfer essential to, 860.
generally assignable, 799.
MODES OF TRANSFER, 861.
by descent and by purchase, 861.
by contract, 704.
tort as a means of, 705.
by judgment, 704.
by marriage, 704. ,
PUBLIC DOMAIN —
annexation of independent countries, 223.
partition of, by admission of state, 233.
colonial dependencies, 236.
PUBLIC IMPROVEMENT —
direct grants of public aid, 419.
PUBLIC LAW, 10.
PUBLIC OFFICERS (see OFFICERs)—
de facto and de jure, 529.
are agents and trustees, 268, 770.
validity of contract with public, 769.
official bonds of, 530.
liability to private actions, 527.
title, how questioned, 1094.
PUBLIC PERSONS —
defined, 160.
INDEX. 1227
'Beferences are to pages.
PUBLIC POLICY —
meaning of, 767.
applied to contracts, 767.
PURCHASE —
defined, 1008.
PURPRESTURE, 767.
right of city to forcibly remove, 359.
Q.
QUANTUM MERUIT —
theory of the action, 760.
in entire contract, 758.
QUASI-CONTRACTS (see CONTRACTS).
QUASI-CORPORATION —
nature of, 505.
counties and towns but quasi, 489.
no inherent powers, 521.
liability for torts. 522, 523.
liability for direct negligence, 523.
contractual liabilities, 534.
implied contract, 524.
QUIA TIMET (see EQUITY).
QUORUM —
how constituted, 446.
QUO WARRANTO (see ACTIONS) —
nature of, 1093, 1094.
office of the writ, 1094,
how begun, 1094.
procedure in, 1094.
petition in, 1094.
against individuals, 1004.
assuming official powers, 1094.
qualification of relator, 1094.
against corporations usurping power, 1094.
against individuals assuming corporate rights, 1094.
questions exercise of official power, 1094.
R.
RACE DISCRIMINATION, 627.
RAILROADS —
nature of right of way, 996.
REAL PROPERTY —
outlines of, 954, 1007.
difficulty of treating, 955.
relation to contracts, 955, 957.
TITLE OF NATIONS, 958.
discovery and occupancy, 958.
conquest, 959.
cession, 959.
1228 INDEX.
“Beferences are to pages.
REAL PROPERTY (continued)—
TENURE —
relation to real property, 957. **
feudal, distinguished from ownership, 965.
distinguished from estate, 957.
distinguished from title, 957.
ancient and modern, 957.
political Importance of, 967.
Saxon, 965.
English, 966.
feudal and allodial distinguished, 965.
value of allodial, 968.
FRIVATE Own ERSHIP —
what it is, 955.
foundation of, 965.
why established, 968, n.
in the United States, 968.
comes through the state or nation, 965.
devolution of title from the government, 969.
policy of disposal, 970.
reservation —
for Indians, 970.
for public use, 970.
implies power to sell, 971.
but not to devise, 971, n. 4.
right of alienation, the jus dispomendi—
restraints on, 971.
rule against perpetuities, 973.
rule against spendthrift trusts, 973.
rule favoring charitable trusts, 972, 997.
entailed estates prohibited, 974.
transformed into fee, 974.
TAND —
meaning of, 961.
crops and trees, 962.
church pews, 962.
ice, 962.
manure, 962.
minerals, 962.
natural gas, 962.
burial lots, 963.
Cemeteries, 963.
fiactures, 963.
defined, 963.
annexation —
actual, 963.
constructive, 963.
trade and husbandry, 964,
W.
INDEX. 1229,
References are to pages.
REAL PROPERTY (continued)–
ESTATES IN LAND —
defined, 956, 975.
which alienable, 979.
classification of, 975.
legal and equitable, 992.
in fee—
defined, 968.
base fees, 978.
conditional fees, 971.
distinguished from estates tail, 974, n.
fee-simple, 971, 978.
must be unconditional, 972.
estates tail, 971, 974.
formerly conditional fee, 974.
considered with reference to duration of enjoyment —
freeholds —
meaning of, 976, 977.
for life, 978.
include estates per auter vie, 977.
duties of life tenant, 979.
jure watoris, 980.
husband’s interest in wife’s land, 980, 981.
curtesy, 981.
how created, 981.
how defeated, 981, 983.
in trust property, 982.
dower —
how defeated, 985.
assignment of, 984.
defined, 983.
species of, 983.
essentials of, 983.
inchoate and consummate, 983, 984.
release of, 984.
community property, 985.
homestead, 985.
family, in homestead law, 986.
head of, 987.
abandonment of, 988.
alienation of, 987.
less than freehold, 977, 988.
are chattels real, 977.
are the tenancies infra, landlord and tenant.
considered with reference to mature of interest and character of
possession —
easements and servitudes, 992.
nature and species of, 993.
profits a prendre, 993.
1230 INDEX.
References are to pages.
REAL PROPERTY (continued)–
ESTATES IN LAND (continued)—
dominant and servient estates, 993.
as to surface water, 993.
servitude to repair, 992, n.
nature of, 893.
license, distinguished from easement, 994.
always revocable, 994. t
COIOOllºl OilS —
defined, 994.
not properly estates, 994.
right of, 994.
rents —
defined, 989, 995.
relation to land, 969.
species of rent service, rent charge, rent seck, 995.
rent charge the only rent proper, 995.
annuities —
not strictly an, 995.
franchises, 995.
in land, 995.
of fishery, 702.
how created, 960.
not generally hereditament, 960.
considered with reference to time of enjoyment—
in possession, 1000.
in remainder, 1000.
remainder over defined, 1013.
vested and contingent, 1022.
as to certainty of continuation —
absolute, 1001.
conditional, 1001.
mortgages are species of, 1002.
LANDLORD AND TENANT, 988.
nature of tenancy, 988.
origin of, 971.
character of possession, 988.
lease defined, 988.
how created, 988.
classes of tenancies —
for years, 990.
at will, 990.
at sufferance, 991.
year to year, 991.
cropper not a tenant, 989.
relative duties of, 991.
tenant's duty of repair. 992.
effect of destruction of premises, 991.
INDEX. & 1231
References are to pages.
REAL PROPERTY (continued) —
LANDLORD AND TENANT (continued)—
emblements —
defined, 980.
fructus maturales, 980.
fructus industriales, 980.
apportionment of rent, 989.
MORTGAGES —
on land, 1002.
are estates on condition, 1002.
absolute deed shown by parol, 1002.
powers of sale in, 1004.
remedies on, 1003.
after condition broken, 1003.
when due, 1003.
equity of redemption, 1003.
with reference to number and connection of tenants —
in severalty, 1004,
in joint tenancy, 1004.
in partnership, 1005.
in common, 1005.
in coparcenary, 1006.
in entirety, 1006.
defined, 980.
TITLE –
definition, 956.
outline of, 1007.
governed by laws of situs, 1006.
color of, defined, 1009.
nodes of acquiring —
by descent, 1006.
§ modern law of, 1006.
law of, 1008.
of personalty, 1008.
purchase, 861, 1008.
feoffment and grant distinguished, 1008.
occupation not, 965.
accretion, 1008.
adverse possession, 1009.
prescription, 1009.
devise, 1010.
executory devises, 1021.
dedication, 1010.
release, 1010.
confirmation, 1010.
bargain and sale, 1010.
parol partition, 1011.
probate and administration, 1022.
common recovery, obsolete, 971, 975.
1232 INDEX.
References are to pages.
REAL PROPERTY (continued)—
TITLE (continued)—
deeds of conveyance —
- the rule in Shelley’s case, 1011.
elements of, 1007.
instrument of convéyance, 1014.
parts of, 1015.
conditions in —
always contractual, 1002.
against alienation, repugnant to fee-simple, 973.
collateral provisions, 1015.
description of boundaries, 1019.
formalities of execution, 1017.
acknowledgment, 1017.
delivery, 1017.
patents need no delivery, 970.
sealing, 1017.
signing, acceptance, 1018.
statute of frauds, 1017.
registration or recording, 1019.
COvenants —
running with land, 1016.
restrictive covenants, 1015, 1016.
wills —
kinds of, 1020.
execution and revocation, 1020.
rule of Shelley’s case applies to, 1020.
executory devise, 1021.
office and form of, 1020.
validity of, 1020.
RECAPTION OF PROPERTY, 1027, 1038. º
right to break close of another, 1038, n.
RECEIVER —
how he may be sued, 1090.
RECONSTRUCTION —
an anomalous condition, 428.
RECORD —
an essential in procedure, 1028.
REDRESS — * |
by act of party, 1027.
re-entry, 1038.
REFORMS IN PROCEDURE –
resumé, 1056.
REGISTRATION —
object of, 959, n.
of deeds, 1019.
INDEX. 1233
References are to pages.
RELATOR —
functions of, 1094.
RELIGION —
relation to society, 18.
RELIGIOUS I,IBERTY —
Puritan idea of, 19.
and Puritanism, 46.
in America, 51.
nature of, 628.
protected in United States, 630,
RELIGIOUS WORSHIP —
unlawful disturbance of, 630.
REMEDIES (see ACTIONs; PLEADINGs)—
basis of law of, 1026.
must be judicial, 1027.
exception, 1027.
part of definition of rights and obligations, 130, 392.
how far essential, 789.
power of state to change or regulate, 391.
by act of party, 1037, n. 3.
must be peaceable, 359.
election of, 1062,
so-called extraordinary, 1093.
RENTS (see REAL PROPERTY), 989, 995.
the beneficial use of land, 329, 969,
REPRESENTATION —
consent and, 3. \
in Greece, 4.
and taxation, 49.
virtual, 55.
basis of, 440.
application of principle, 289.
constant violation of principle of, 624, 625.
by counties and townships, 511, 512.
REPRESENTATIVE GOVERNMENT —
in Greece, 1.
basis of, 512.
REPRESENTATIVES —
may not hold other United States office, 292.
REPUBLICAN FORM OF GOVERNMENT –
described, 190.
RES (see THINGS).
RES ADJUDICATA —
elements of, 1109.
of facts in issue, 1109.
facts not directly in issue, but litigated, 1109.
how determined, 1109.
1234 INDEX.
References are to pages.
RESPONDEAT SUPERIOR (see PRINCIPAL AND AGENT; MASTER AND
SERVANT.)
RESPONDENTIA (see INSURANCE).
RETROACTIVE AND RETROSPECTIVE LAWS-
validity of, 450.
not favored, 451.
REVENUE (see TAXATION)—
national, sources of power for, 315.
power of congress, 315, 316.
of English crown, 323.
extraordinary, 324.
regular and perpetual, 324, 325.
internal revenue, 322.
summary process of collection, 282, 283.
TEVIVOR —
bill of, 1088.
REVOLUTION —
American, cause for, 54.
right of, 185.
TIGHT OF WAY —
nature of railway, 996.
RIGHTS —
meaning of, 91, 110.
defined, 125.
natural and legal, 87.
classification of, 137.
natural, civil, political, 154, n.
of persons, 95.
in things, 130, n.
and obligation, distinguished, 131.
relation of, 133.
correlative terms, 140. 142.
classification of, in civil law, 132. "
personal and real, 132.
various denominations of real and personal, 134.
real and personal, distinguished, 136.
Civil, 147.
how affected by change of government, 229.
Secured by government not surrendered to, 147.
of people, not created by constitution, 262.
which created, 262.
in territories—
civil, are secure in territories, 230.
political, discretionary with congress, 230.
absolute and relative, so called, 135, 142.
Blackstone’s treatment of, 144.
definition explained, 150.
INDEX. 1235?
References are to pages.
RIGHTS (continued)—
absolute and relative (continued) —
Hale and Blackstone differ as to, 147.
Hale's treatment of, 150.
all are relative, 143.
none are absolute, 609, 612.
protection of, end of government, 1025.
imperfect without remedies, 1027.
and remedies, complex state of subject, 129.
RIPARIAN RIGHTS –
extent of, 702.
ROMAN HIER ARCHY —
and feudalism, 16.
ROMAN LAW —
in Britain, 30.
classification of, 74.
system of private law, 10.
S.
SABBATH —
laws requiring observance, 461.
SALE —
defined, 861.
transfer of title for money, 864.
elements of, 861.
executory contracts to sell, distinguished, 861.
and gift, distinguished, 861.
bargain and sale, application of 861.
distinguished from bailments, 861.
WHAT MAY BE SOLD, 862.
subject of, must exist, 862.
or have potential existence, 862.
crops, 862.
ice, 862.
identity of subject-matter, 863.
TITLE OF VENDOR, 863.
through agent, when valid, 863.
caveat emptor (let the purchaser beware), a rule of, 863.
ASSENT IN SALES, 864.
by offer and acceptance, 864.
advertisements not offers, 864.
acceptance must be unqualified, 864.
agreement for return, effect of, 870.
return, when only remedy, 871.
warranty in, 870.
by sample, 871.
mode of inspection, 871.
1236 INT)FX.
References are to pages,
SALE (continued)—
CONSIDERATION.—
as to creditors, must be valuable, 864.
and also boma fide, 873, 874.
voluntary sales, when valid, 865.
pre-existing debt as consideration, 865.
CONDITIONAL SALES.–
validity between parties, 871.
between third persons, 872.
DELIVERY —
unnecessary between parties, 863, 866.
to bind third persons —
possession should accompany and follow title, 866.
change of possession must be unequivocal, 867.
to carrier, 868.
fixes place of sale, 868, n., 869.
right of inspection, 869.
WHEN FRAUDULENT, 866.
secret trusts void, 866.
vendee's fraud in purchase, 873.
misrepresentations as to credit, 873.
essential formalities, 874.
statute of frauds, applicability of, 874.
to affect creditors, form must comply with substance, 866.
STOPPAGE IN TRANSITU-
right of, 875.
extent of, 875.
origin of right, 875, 876.
essentials of, 876.
who entitled to, 877.
how defeated, 878.
how exercised, 878.
effect of, 878.
SALUS POPULI SUPREM.A. LEX –
compared with commerce power, 353.
SEARCH-WARRANTS —
general, illegal, 621, 622.
SCHOOLS —
public or common, 531.
property of, 534.
religious teaching in, 629.
of bible in, 629.
SCIENCE OF GOVERNMENT –
America a leader in, 61.
SCIRE FA CIAS —
against exercise of official power, 1094.
SECRETARY OF STATE —
powers and duties, 483.
INDEX. 1237
References are to pages.
SEISIN —
meaning of, 955, 976, 977.
SELF-DEFENSE —
Scope of the right, 611.
justifies homicide, 611.
SELF-GOVERNMENT —
fundamental principles of, 201.
SENATE —
of New York, as a court, 279.
SENATE OF UNITED STATES –
constitution of, 294.
Qualification of members, 294.
manner of election of members, 294.
organization of, 294.
as a court, 294, 295.
criminal jurisdiction of, 295.
concurrent powers with executive, 296.
SERVITUDE (see RAILROADS).
SEIELLEY'S CASE —
rule of, explained, 1011.
SHERIFF —
office and duty, 525, 1030.
SHIP OWNERS —
similarity to partnerships, 832.
SLAVERY —
Aristotle's arguments justifying, 6.
as in accord with natural law, 6.
the contrary doctrine in Rome, 15.
destroyed by thirteenth amendment, 615.
SOCIETY —
foundations of, 89.
relation of religion to, 18.
natural and civil, defined, 163.
relation of men in, 153.
antedates government, 258, 259.
creates government, 259.
SOVEREIGN —
definition, feudal sense, 23.
divine right of, 5.
SOWEREIGNTY —
defined, 258.
and allegiance, 16.
origin of theory of, 14, n.
early idea of, in English law, 172.
early limitations of, 82.
in Blackstone's time, divided, 173.
1238 TNIDEX.
References are to pages.
SOVEREIGNTY (continued)—
European idea of, 258.
American use of word, 199.
of people, 170, 200, 258.
personal, destroyed by declaration of equality, 178.
divided in America as to objects, 304.
of national government, 300.
state and national, 311, n.
SPECIFIC PERFORMANCE –
limits of remedy, 1079.
against corporations, 561.
STAMP ACT, THE, 54.
STARE DECISIS, 254.
STATE AUDITOR —
power and duties, 483.
STATE EXECUTIVE —
departments of, 478.
secretary of state, 483.
superintendent of public instruction, 483.
STATE, THE —
double meaning of, 165.
defined, 194.
people distinguished from, 170.
relation to people and minorities, 190.
objects of creation, 512.
STATES OF THE UNION —
autonomy preserved by constitution, 189.
authority of, 197.
controls private ownership, 335.
status of citizens, 639, 651, 659.
acts as parens patriae, 677.
essential constituents of nation, 195.
and territories, distinction, 228, m.
not a sovereign, 195.
position of as to independence, 195.
limits on mode of action, 197.
territory ceded by, 210.
and nation, powers distinguished, 167.
partition of jurisdiction caused by admission of, 233.
retains all sovereign powers not granted to national government, 302.
cannot affect powers granted by congress, 424.
cannot impair obligation of contracts, 787.
power to discharge contracts, 391.
individual contracts with, at peril, 196.
cannot be sued by individual, except by consent, 196, 1097.
INDEX. * - 1239:
References are to pages.
STATES OF THE UNION (continued)–
taxing power, 462.
is not a power to destroy, 462.
is limited, 462.
by public needs, 463.
right to grant public aid, 464.
power to license or tax business, 344.
state grants for public improvements, 418.
STATE LAW —
binds federal courts, when, 248.
need not be uniform throughout state, 623.
STATE LEGISLATURE –
has no absolute power, 437, 462.
organization of, 438.
orbit of authority, 437.
not a sovereign department, 439.
implied limitations on, 440.
inherent limitations of, 274, 286.
power over contracts, employments and professions, 625.
power to grant special franchise, 701.
STATUS —
idea of, 93, 100, 106.
meaning of, 111.
Hale's treatment of, 121.
equals personality, 263, 265.
STATUTES —
must be legally passed, 444, 445.
must be based on regular legislative action, 445.
how authenticated, 482, n.
STATUTE DE DONIS —
object of, 771, 974.
created estate tail out of conditional fee, 974.
STATUTE OF CHARITABLE USES, 998.
STATUTE OF FRAUDS—
passage of, 738.
affects form of contracts, 738, 739.
contracts of sales, 874, 875.
guaranty and suretyship, 921.
provisions of, affecting land transfers, 1017, n.
STATUTES OF LIMITATION —
do not prevent recaption, 704.
do not destroy property right, 704.
bar rights of action, 704.
STATUTES OF MORTMAIN —
object of, 996.
STATUTE QUIA EMPTORES —
in America, 972.
STATUTES OF USES, 997,
1240 * INDEX.
b.
*
References are to pages.
STREETS (see MUNICIPAL CORPORATIONs) —
use by abutting owners, 553.
right to forcibly remove purpresture, 359.
STRIKES AND BOYCOTTS –
injunction against, 360.
strikes defined, 1086.
enjoined in equity, 1086.
SUBINFEUDATION, 24.
SUBROGATION (see SURETY; GUARANTY)—
enforced in equity, 1078.
SUCCESSION TAXES, 334.
right of nation to impose, 334, 335.
SUFFRAGE –
nature of, 198, 270, 512.
a civil right, 607.
voters not sovereigns, but agents, 198.
SUMPTUARY L.A.W –
defined, 456.
SUNDAY LAWS —
validity of, 461.
SUPERVISOR, 525.
SUPREME COURT (see CourT).
SUPREME LAW —
the constitution, 240.
treaties, 241.
SURETY (see GUARANTY), 917.
SURROGATE COURT (see PROBATE CourT).
SURVIVORSHIP (see JUs ACCRESCENDI).
SYNDICATE —
nature of, 562, 563, 828.
object of, 829.
T.
TAXATION —
and representation, discussed in England, 54.
inseparable, 326, n.
of colonies by parliament, 54.
consent an element of, 326, n.
nature of, 316, 318, 319.
in England, 318.
Blackstone's classification of taxes, 325.
defined, 316, 317, 319.
by territories, 338.
congress cannot tax state agencies, 320.
distinguished from regulation of commerce, 317, 326, 340, n.
INDEX. 1241
References are to pages.
TAXATION (continued)–
METHODS OF, 323. -
direct and indirect, distinguished, 323, 326.
no absolute criteria, 331.
criterion suggested, 328.
direct tax defined, 327, 331.
ruling principle of distinction, 334.
on land—
tax on products is direct, 328, 333.
how laid, 323.
uniformity required, 326, 327.
indirect, why so called, 332.
is a duty or excise, 332.
collection of, 337.
capitation tax, 817.
how apportioned, 327.
who may be taxed, 320.
what may be taxed, 465.
exports may not be, 320, 321.
commodities in tax law, defined, 833.
of business, 334,465.
income tax, 329.
succession and inheritance, 834.
of legacies, 465.
bank tax, 334.
exemptions from, 466.
laying, levying and imposing, 385.
assessment of, 336.
principles of, 386.
collection and enforcement, 336.
must be for public purpose, 463,464.
when enjoined, 1087.
TENANCY (see REAL PROPERTY).
TENEMENT –
defined, 960,
TENURE –
feudal, meaning of, 21.
TERRITORIES ––
constitution per se does not extend to, 212.
ceded by states, 210.
acquisition of foreign, by United States, 216.
power to acquire, where derived, 219.
nations have inherent power to acquire, 217.
to territory by purchase, 222.
right to govern follows acquisition, 221.
government not necessary for dependency, 231.
acquired by annexation, 223.
disconnected, acquisition of, 223.
title to, by purchase, 222.
1242 INDEX.
References are to pages.
TERRITORIES (continued) —
and state, distinction, 228, n.
acquired from Mexico in 1848, 222.
ceded by Spain in 1819, 220.
ceded by Texas in 1850, 222.
Louisiana, 223.
laws of, 226.
government of, .227.
unoccupied, early disposition of, 210.
titles in —
how affected by admission of state to Union, 231.
effect of transfer on permanent structures, 233.
TESTAMENT (see REAL PROPERTY, sub-head Wills).
THEORY (see PLEADING, sub-head Equity Pleading).
THINGS —
law of, 94.
meaning of, 109, 110.
scope of word, 117,690.
the object of rights, 130.
Hale's conception of, 122.
subject of property, 130, 689.
personal, 136.
TORTS —
create rights in personam, 138.
as a means of transfer, 705.
when assignable, 800, 801.
personal, not assignable, 803.
not generally assignable, 1104.
equity jurisdiction over, 1085, 1086.
TOWN MEETING —
history of, 447 et seq.
TOWNSHIP —
not a pure corporation, 487.
created by constitution, 510.
classes of powers, 511.
New England, history of, 509, 510.
unlike English towns, 519.
as units of representation, 512.
importance in scheme of self-government, 520.
modern American, 520.
congressional, 521.
TOWNSHIP OFFICERS, 526.
TRADE-MARKS —
origin of, 699.
utility of, 699.
how established, 700.
qualified property in, 700.
how transferred, 701.
a
INDEX. 1243
References are to pages.
TRADE-MARKS (continued)—
how preserved, 701.
power of congress over, 701.
actions for unfair use, 700.
jurisdiction of federal courts in trade-mark cases, 701.
TRADE SECRETS —
, injunction against disclosing, 847, 848.
TRANSACTION —
origin and meaning of word, 75.
may include many items, 1107.
TRANSPORTATION —
an instrument of commerce, 353.
TREASON –
constructive, 48.
TREATIES —
power of senate, 296.
part of supreme law of land, 241, 607.
when first recognized as part of law, 241.
effect of, 242.
should be acted on by congress, 242.
TRESPASS —
equity jurisdiction over, 1085.
when enjoined, 1085.
TRESPASS ON THE CASE –
origin of, 1049.
TRIAL —
function of judge and jury, 1110.
of questions of fact, 1109.
separation of law from fact, 1110.
of questions of law, 1110.
TRUSTEE –
city may be, 534.
TRUSTS —
agency a species of, 816, 817.
in land, 996.
active and passive, 997.
express and implied, 997.
defined, 998.
how created, 998, 999, 1083.
species of, 998.
distinct from uses, 997.
TRUSTS AND COMBINATIONS —
prohibition of, 461.
anti-trust law, 779.
traffic rates, contract, 779.
position of national courts regarding, 779.
1244 INT) EX.
References are to pages.
\
U.
TJBERRIMA FIDES —
an indefinite term, 812.
TJLTRA VIRES —
the doctrine of, stated, 558.
application to quasi-corporations, 524,
test of power, 559.
wltra vires acts, 559.
phases of, 558.
in cities, 558.
as to municipal bonds, 443.
when ultra vires acts bind, 585.
TJNIFORM L.A.W –
desirability of, 249.
not required in different states, 623.
TJNION —
early American, 208.
national, evolution of, 205.
nature of, 205,
colonial, growth of, 205.
nature of during Revolution, 208.
of New England colonies, extension of, 208.
United Colonies of New England, organic law of, 206.
UNITED STATES —
character of government, 433.
fundamental principles, 201.
TJNREASONABLE SEIZURE AND SEARCH –
what constitutes, 621, 622.
USAGES, 245, n.
part of common law, 242.
TJSURY —
national banks, how far within state laws, 374.
when recoverable back, 785.
W.
VENUE –
in federal courts, 1098.
VICE-PRESIDENT –
participation in legislation, 427.
VOTERS —
agents not rulers, but agents of people, 198.
W.
WAGER –
defined, 780.
elements of, 782.
insurance similar to, 910.
INDEX. 1245.
References are to pages.
WAGER (continued)–
dealing in futures, 783.
losses by, when recoverable, 784.
wagering contracts —
valid at common law, 780.
form of, 781.
how far valid, 782.
generally prohibited, 782.
WAR —
power of congress, 399.
congress only can declare, 411.
may exist without declaration, 411.
effect of civil on civil laws, 412.
WAREHOUSEMAN (see BAILMENTS).
WILLS (see REAL PROPERTY, sub-head Title),
WITNESSES (see EVIDENCE) —
immunity from self-incrimination, 366.
WOMAN'S SUFFRAGE —
theoretically a right, 624.
WORDS —
use of, in law, 63.
new meaning to old, 71.
inapt use of, 93.
changes in meaning, 99.
WRIT, ORIGINAL –
origin of, 1043.
office of, 1048.
issued out of chancery, 1048, 1049
WRIT OF ASSISTANCE, 621, 622.
WRIT OF RESTITUTION, 1091.
WRIT OF SUBPOENA —
in chancery, 1050.
WRONGS (see ACTIONS) —
meaning of, 110.

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