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About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web at|http : //books . google . com/ /$7*^T^'^^ S^arbart CoUcsc liUrarg PROM the estate of Professor E, W. GURNEY (CUai of tS^) Received 6 March, igoy Digitized by GoogI( 1- % Digitized by Google Digitized by Google Digitized by Google Digitized by Google Digitized by Google Digitized by Google Digitized by Google a :'3 Digitized by Google COMMENTARIES OK LAWS OF ENGLAND; IN FOUR BOOKS. By SIR WILLIAM BLACKSTONE, Knight, Om or -nv Jusncxs or His Majbsty's Covkt or Common Plbas. SUCH NOTES OF ENDURING VALUE AS HAVE BEEN PUBLISHED IN THE SEVERAL ENGLISH EDITIONS. A COPIOUS ANALYSIS OF THE CONTENTS. And Addidonal Notes with References to English and American Decisions and Statutes, to date, which Illustrate or Change the Law of the Text ; also, a Full Table of Abbreviations, and SOME CONSIDERATIONS REGARDING THE STUDY OF THE LAW. By THOMAS M. COOLEY, Jay pRoresaoR or Law in thb Univbrsity op Michigan, and Aothoh op ** Constitutional Limitations." VOL. 1. INCLUDING BOOKS I & II. SECOND EDITION— KEVISED. CHICAGO. CALLAGHAN AND COMPANY. 1876. Digitized by Google 0^/SJf.^^. ti. ^Jt Har^ ©•Uere Ubtftry nom the xOstate f^f (ilr^.j Knlered Moording to Act of Congress in the year eighteen hundred and seventy, Bt CALLAGHAN a COCKCROFT, In the office of the Librarian of Congress, at Washington. filtered according to act of Congress, in the year eighteen hondred and seTenty-tW4H Bt CALLAGHAN A CO., In the offlee of the Librarian of Congress, at Washington. CHARLES VAN BRMTBUYSBN h SONS, PRINTERS, STEkBOTYPERS AND BINDERS, ALBANY, NEW YORK. Digitized by Googl< VO TBI ALUMNI Of TBI LAW DEPABTMENT OP MICHIGAN UNIVERSITY THIS EDinOlSr OF A WOBE WHOSE CABSFUL AND FBEQUEITT PEBTJSAIi OAl^KOT FAIL TO 8711E17QTHSK THEIB LOTS OF THE LAW AS A SOIBKOB, Al^D TO STIMULATE A GBKEBOUS AMBITIOK FOB PBOFESSIOlirAL ST7C0BSS, IS MOST BESPEOTFULLT INSOBIBED. Digitized by Google Digitized by Google SUGGESTIONS CONCERNING THE STUDY OF THE LAW. By the Editor. This Commentaries of Mr. Justice Blackstone have now for more than a centnry been the wonder and delight of persons whose curiosity or interest have led them to investigate the constitution and laws of Great Britain, the condition of things from which they grew, and the reasons upon which they rest Lapse of time does not seem to diminish the attractions, or to lessen materially the practical value of these Commentaries. Large as is the proportion of the rules and usages here defined and described which have been modified by statute, or have become obsolete in the changes and habits and modes of thought among the people, the best book in which to take a comprehensive view of the rudiments of English and American law is still the work now before us of this eminent jurist It is true that of late many short and easy highways to a knowledge of the law have been planned by different writers, along which the student might saunter with little hard labor and less hard thought, arriving at his goal at last with a vague impression of having surveyed a vast field of curious and irreconcilable contradictions, where confusion was the leading principle, and chance the arbiter of controversy; but the thoughtful studeut, the earnest seeker after knowledge, ambitious to fit himself for the practical duties of life, and for the stations to which the partiality or discern- ment of his fellows might summon him, has shunned these deceptive ways, and by the aid of vigorous thinkers, like the author before us, has delighted to trace the plain law running through the apparent confusion, and to discover and contemplate the sound reasons out of which rules apparently arbitrary have sprung. Such minds soon perceive that the field of legal knowledge is too vast and diversified to be understood from a superficial survey of its principal objects and features, and that it must be carefully explored through all its mazes and intricacies, and with the aid of the men who, having studied the law with an intimate knowledge of the habits and cnstoms of the people over whom it was established, were prepared to say why this rule was prescribed, and how and under what circumstances that custom sprung up. And so it happens, that while year by year hundreds of superficial workers are preparing themselves to glean in the fields of legal controversy, the true laborers in that field, the men who are to reap its substantial hai-vests, and to bear away its tempting prizes, do not spare themselves the labor of an intimate acquaintance with the work of this great jurist, nor fail to explore the abundant stores of legal learning to which he gives us such agreeable introduction. Nor, although there are many things in Blackstone which have ceased to be important in the practical administration of the law, can we with prudence or propriety omit to make ourselves acquainted with them. Things which are abolished or obsolete may, nevertheless, have furnished the reasons for the things which remain : and to study rules while ignoring their reasons would be like studying the animal anatomy while ignoring the principle of life which animated it. And it is noticeable, also, that though in England, where the Digitized by Google Vl SUGGESTIONS FOB THB STUDY OF THE LAW. common law and the statutes mentioned by this author have been so greatly changed by recent legislation^ new works adapted to the present condition of things may, to a considerable extent, supersede the one before us, in America where many of these changes haye never been made, and where much of the recent English legislation has no importance, even by way of explanation or illustration, the original work of Blackstone is much the most useful, as pre- senting us the law in something near the condition in which our ancestors brought it to America, leaving us to trace in our statutes and decisions its subsequent changes here, unembarrassed by irrelevant information about parliamentary legislation which in no way concerns us. In the preparation of the present edition it has not been thought unimpor- tant to call attention from time to time to the differences which exist between the constitutions of Great Britain and of the United States. Some of those differences, however, are too subtle to be put upon paper, and spring from differences in society which are sensibly felt but difficult of description or explanation. To speak of the one government as monarchical and the other as republican is naturally to convey the idea that in the one the element of executive strength and power is predominant, while in the other the influence of the people in the government is more direct and controlling; and the student of politics, who comes to this subject without previous familiarity with English constitutional history, is apt to be surprised when he finds that the personal influence and authority of the American Executive are much the more potent, and that while the popular branch of the American legislature is at most but the peer of the upper, the commons house of parliament lays down the law for both the monarch and the house of lords, permitting neither of those branches of the legislative department to oppose its settled determina- tions. But it would be idle from thence to draw general conclusions, unless we go beyond the theory of the British constitution, and take into considera- tion the aristocratic nature of British society, and that strong conservative sentiment and tendency which preserves to the privileged classes the real control of the government, notwithstanding the house of the legislature, which nominally represents them, has been stripped in a measure of its power, and the government brought into more intimate sympathy with the prevailing popular sentiment We cannot understand a political system, and judge of its value and probable influence and permanency, without a knowledge of the people who have adopted it, and of the manner in which they are likely to give its theories practical effect ; for nothing is more evident than that what will conduct one people to ruin, may lead another, which has had a different history and training, and whose natural and acquired tendencies are different, on the high road to national greatness and prosperity. The necessity of checks and balances in government, and of a careful distribution of govern- mental functions, is obviously greatest where the conservative sentiment is weakest, and it is consequently entirely possible that a concentration of power in a single house of the legislature may be safe and even useful in one country, while justly condemned by all thinking men as likely to lead to commotions, anarchy and revolutions in another. All history teaches us that different peoples, or even the same people in different stages of advancement, are not to be governed by the like modes and forms; and while we all concede this as a general rule, we are too apt, perhaps, when we compare with our own the Digitized by Google SUGGESTIONS FOB THE STUDY OF THE LAW. YU Bystem which preyails in the conntry from which we have mainly derived our ideas of government and law, to forget that we erected our structure on foundation ideas of democracy which never pervaded the governing classes in Great Britain, and that the aristocratic sentiment, which is there controlling, is here in a political point of view, insignificant. We have tried in America the system of setting bounds to the authority of government, by written constitutions which prescribe limits and furnish the means of restraint when a disposition is evinced to overstep them. It is possible that, while we have thus the letter of the law in black and white before us, we become less regardful of its spirit than we should be if its maxims were left to the watchful care and reverential guardianship of the people. It is very likely that those who frame the laws would be more careful at all times to keep within due bounds, if the responsibility of final decision upon questions regarding their own power was to rest with them rather than with some other authority. It is quite certain that enactments of doubtful constitutional validity are sometimes adopted by legislators who waive the question of doubt, and leave it to be settled by the courts when the true theory of our government requires that they should consider it carefully and con- scientiously, and make their action depend upon its solution. But, on the other hand, there are advantages in our system which more than compensate for the drawbacks referred to; and the evident tendency in this country is to add to constitutional restrictions rather than to diminish their number. We discover this in the proceedings of every constitutional convention which is held; in the restraint imposed upon private and class legislation; in the increased particularity in the specification of personal rights; and in the securities devised to prevent hasty and improvident action in legislative bodies. This tendency cannot be overlooked in our consideration of the constitutional system of the American states, and, whether we regard it as wise or unwise, we have only to bow to the popular will, expressed as it is in the most solemn and authoritative manner that could possibly be devised. It scarcely seems necessary to remark that the student of American law ought to be well grounded in English history, and to have studied the develop- ment of constitutional principles in the struggles and revolutions of the English people. It is idle to come to an examination of American con- stitutions without some familiarity with that from which they have sprung, and impossible to understand the full force and meaning of the maxims of personal liberty, which are so important a part of our law, without first learning how and why it was that they became incorporated in the legal system. An abstract consideration of rights may answer the purpose of the mere theorist, but it is not sufficient for the lawyer; he must deal with princi- ples as they have found recognition in the legal system, with all the limitations which state necessity or policy may have imposed. A recent thoughtful anr* philosphical writer has well said that "rights are and can be real, only as tliej are established in the civil and political organization. They are slowly and only with toil and endeavor enacted in laws and moulded in institutions. It is only with care and steadiness and tenacity of purpose that those guaranties are forged which are the securance of freedom, and they are to be clinched and riveted to be strong for defence and against assault. The rhetoric which holds the loftier abstract conception avails nothing, until in the constructive grasp Digitized by Google VIU SUGGESTIONS FOR THE STUDY OF THE LAW. and tentative skill of those who apprehend the conditions of positive rights, it is shaped and formed in the process of the state. The foimer is often the quality of some individual thinker, whose ideal is cold also in its distant elevation, and who, regarding in events only the conflict of ideas, is indifferent to the real life of men and nations ; and this indifference may become, when his own ideal is unrecognized, the ground only of the scorn of an unsympathiz- ing imagination — not the nobleness but the weakness of disdain:. the latter is the work of the statesman who alone knows how patient and vigilant is the toil which is the condition of the institution of rights, and how wary and bitter is the antagonism of the forces from whose selfish grasp the ampler field of rights is wrested, and who forgets in no immediate end the long result to be attained, nor in the exultation of momentary success, or the discouragement 'Of momentary failure, how firmly and how broadly rights, to be secure must be enacted in the laws and moulded in the institutions of the state." {a) It is not our meaning that the student should read history with a view alone to the law, or that he should confine his investigations to the history of a single race: in this particular his culture cannot be too broad or too liberal; what we mean is, that to the lawyer English history possesses a value that renders its careful study quite indispensable, and that the student of law must pursue it as the beginning and foundation of his legal course if he aspires to respectable attainments. His particular and careful attention should be directed to the history of the English constitution as traced in the works of writers like Hallam and May; and from the speeches of Burke and Erskine, and other eminent statemen of modern times, as well as from some of the leading state trials, he will derive abundant illustration of a pertinent and forcible character, that will tend to make more vivid and permanent the impression which the facts of the history leave upon the mind.(^) From these sources he will not only derive increased love of liberty, and strengthened attachment to the institutions under which he lives, but he will be taught, also, to discern in the dry rule of law the principle which underlies and vivifies it, and he will discern how to apply correctly that principle, in (o) " The Nation,'* by E Mulford. p. 88. As this book has but recently appean^d, attention is called to it as a work which nobly fulfills the purpose announced by the author in his pref ace, " to ascertain and define the being of the nation in its unity and continuity." (6) The leading cases on constitutional law, it would be useful to read in the same connection Those regarded as such have been recently published, with notes, by Mr. Herbert Broom, but his work has not been republished in America. The following are the coses <»f moNt interest and importance in this country, with references to the reports or other publications where they may be fcmnd: Sommersel's Case, 20 State Trials. 1, and Loffl, 1; the right to pei-sonal liberty; slavery the creature of positive law: Bushnell's Case, 6 State Trials, 999; Vaughan, 136; Freeman, 1; 2 Jones. 18; jurors n<»t to be coerced in tlieir verdict, or called to account for it afterwards: Darnell's Case, 8 State Trials, 1; illegality of arrest without cause shown; right to habeas corpus : The Banker's Case, 14 State Trials, 1, and 6 Mod. 29; Skinner, GOl; 1 Free- man, 331; the right to private property : Leach f. Mooney, 19 State Trials, 1001; Burr. 1692; 1 W. Bla. 655; Wilkes v. Wood, 19 State Trials, 1153; Entick v. Carrington, id. 1080; 2 Wilson, 275; illegality of general warrants; right to protection against unreasonable searches and seizures: Stockdale v. Hansard. 9 Ad. and El. 1; 11 id. 253: parliamentary privilege of publication; protection of individuals against libi'llous aspersions in legislative documents; Bamardiston v. Soarae, 6 State Trials. 1063; 2 Lev. 114; Pollexf. 470; 1 Freeman, 880; 8 Keb. 865; legislative powers and privileges. Other cases of historical value, and particularly the great cases of Shipmoney and of the Seven Bishops, are included in the collection, and all are enriched with copious notes. It may here be mentioned, also, that Todd's Parliamentary Government in England — a recent work — is more full in its collection of facts than the Con- stitutional History by May; and is a convenient and usefiil work. Digitized by Google SUGGESTIONS FOB THE STUDY OF THE LAW. IX new cases as they arise, by noting how it has been applied by the great minds which thus become his preceptors. He cannot fail, also, to have it fully impi*e8sed upon his mind in the course of these investigations, that there are some bounds to the authority of govern- ment, which exist in the very nature of our organized society, and do not need to be pointed out by positive law. It is possible that he may sometimes encounter a vague impression that government may rightfully do whatever it h^A i\iQ power to do; and that whenever a particular department of govern- ment, or officer of any department, has not been made responsible to any other for the proper exercise of authority, the determination of such department or officer to do a particular act, must be accepted as satisfactory and conclusive evidence that the act itself is rightful and legal. Such is not the theory of the American constitutions, or of any government where rights are recognized and respected. The sovereignty with us is in the people, and they have delegated to the agencies of their creation only so much of the powers of government as they deemed safe, proper, and expedient The power exercised must be within the grant made, and if it be not, it is usurpation, whether the means of restraint are provided or not The people even proceed deliberately and from a conviction of the absolute necessity for such action, to impose restric- tions upon their own authority; and they preclude themselves from the exercise of sovereign powers except under the conditions of caution and deliberation, which they have previously, by their written constitution, im- posed. It is not, therefore, to be readily inferred that they designed any department of the government to exercise ai'bitrary authority. It is another common error to which our author gives no countenance, that constitutions in free states are established mainly for the purpose of giving effect to the voice of the majority, and that that voice, whenever expressed in due form, is and should be of absolute force. The student will soon perceive that this is true only in a general sense, and that in various ways the majority are curbed and controlled to restrain passion and prevent injustice. To deal arbitrarily with the rights of the minority, even though that minority be so small as to embrace a single person only, is not within the province of any free government, and the power cannot be rightfully conferred, because on no admissible theory of organized society does the sovereignty itself possess \t(c) We must discard alike the idea of a divine origin for government, and the theoretical social compact, and acknowledge rightful authority in the physical power of the stronger to subject the weaker to his will, before we can accede to the doctrine that the greater number of voters is necessarily to hold absolute sway, or that the voice of the people is always to be accepted as the •voice of Deity. Even when convened to consider what shall be the tenns of their compact of government the people are not without law, and are not at liberty to regard themselves as under no restraints. The law of God precedes their action ; the immutable principles of right and justice are over and about (c) "Sovereignty," snys Dr. Liobbr. (Civil Lihorty and Self-government, c. 14) '-'is not absolutism.'* And again, he says, speaking of the despotism which is founded npon pre- existing popnlar absolutism : "the process [by which it is reached] is of no importance; the facts are simply these, the power thus acquired is despotic, and hostile to self-government; the power is claimed on the ground of absolute popular power: and ii becomes the more uncompromU' ing because it is claimed on the ground of popular power" — Ibid. c. 81. Digitized by Google X SUGGESTIONS FOR THE STUDY OF THE LAH. them, and cannot rightfully be ignored; the life and the liberty of the individual and the fruits of his labor are not more sacred after they have been declared by a written law to be inviolable than they were before, and the legitimate province of constitutions is to furnish them with due and adequate protection instead of providing the means by which the individual may be robbed by the organized society he enters, of either or all. The eloquent denunciation by Burke of the doctrine of arbitrary power, delivered on the trial of Warren Hastings, is worthy of being repeated often, and thoughtfully dwelt upon by those who frame laws for a free people. " He have arbitrary power 1 My lords, the East India Company have not arbitrary power to give him; the king has no arbitrary power 'to give him; your lordships have not; nor the commons ; nor the whole legislature. We have no arbitrary power to give, because arbitrary power is a thing which neither any man can hold nor any man can give. No man can lawfully govern himself according to his own will, much less can one person be governed by the will of another. We are all bom in subjection, all born equally, high and low, governors and governed, in subjection to one great, immutable, pre-existent law, prior to all our devices, and prior to all our contrivances, paramount to all our ideas and all our sensations, antecedent to our very existence, by which we are knit and connected in the eternal frame of the univei*se, out of which we cannot stir. This great law does not arise from our conventions or compacts; on the contrary it gives to our conventions and compacts all the force and sanction they can have ; it does not arise from our vain institutions. Every good gift is of Ood ; and he who has given the power, and from whom alone it originates, will never suffer the exercise of it to be practiced upon any less solid founda- tion than the power itself. If, then, all dominion of man over man is the effect of the divine disposition, it is bound by the eternal laws of him that gave it, with which no human authority can dispense; neither he that exercises it, nor those who are subject to it ; and if they were mad enough to make an express contract that should release their magistrate from his duty, and should declare their lives, liberties and properties dependent upon, not rules and laws, but his mere capricious will, that covenant would be void. The acceptor of it has not his authority increased, but he has his crinie doubled.''(rf) What has been said does not at all call in question the correctness, of those rules which have been laid down by courts and law writers for the construction of written constitutions, and for the guidance of legislative bodies or judicial tribunals in passing upon the disputes which arise under them. What is right, what is expedient, what is proper, what constitute the inalienable rights of individuals, and what is necessary to be inserted in their constitution of government to protect them, the people who frame it must judge, and no^ generally he who, under it, is vested with executive or judicial functiona. But in all our inquiries concerning what the law is, and how the written constitution affects the rights of individuals, we are in danger of being led to id) And afcafn, he says in the sume speech : '' Law and arbitrary power are in eternal enmity. IVaroe me a ma^i^trate. and I will name property; name me power find T will nnme protection. It is a contradiction in terms; ft is blasphemy in religion; it in wickedness in potiticx. to »ay that any man can have arbitrary power. In every patent of oflRce the duty is included. For what else does a magistrate exist? To snppose for power is an absurdity in idea. Jndgen are ffnided and governed by the eternal laws of justice to which we are all subject." See Prior's life of Burke, ch. iz; Works. (Little & Brown's Ed.) ix, 455. Digitized by Google SUGGESTIONS FOR THE STUDf OF THE LAW. XI false conclusions if we do not keep in mind the primary and fundamental fact, that '^ written constitutions sanctify and confirm great principles, but the latter are prior in existence to the former"(«) Those instruments have for one of their chief ends the protection of the rights of minorities: they seek the establishment of a government of laws which shall be restrained in its operation within the proper sphere of government, and shall protect the pre- existent rights, not take them away.(/) The best aid to a proper understanding and interpretation of the law, where one's previous reading has fitted him for its consideration, is a thoughtful and patient examination of the purpose of its enactment If one shall enter upon the study of the law under the impression that the extent of his advancement must necessarily bear some relation to the number of hours consumed in reading, and the number of pages devoured, and shall, in consequence of that mistaken impression, hurry over ground where he should proceed slowly, cau- tiously, and with much pains-taking, he must be brought at last &ce to face with the fact that he is reading to little purpose, and catching but surface views. For it is as true with the mental as it is with the physical life, that, to nourish and strengthen the powers, there must be time and opportunity for digestion ; and this process demands consideration, reflection, and patient and laborious thought "All knowledge," says Sir William Hamilton, " is only for the sake of energy;" and, again, "The paramount end of liberal study is the development of the student's mind ; and knowledge is principally useful as a means of determining the faculties to that exercise through which this development is accomplished,''(^) The study of the law must be with active mind and receptive understanding; for otherwise the student, however patient his reading, will be forced to confess in the end that, in the "nice, sharp quillets of the law," with which his memory is burdened, he is, like Shak- speare's clown, " no wiser than a daw." That lawyer, however able, who rises in court to discuss great questions with no better or more thoughtful prepara- tion than a great collection of precedents, from which he may read what this judge has said, or what deduction that writer has made, has generally no right to expect that he is rendering valuable assistance to the court, or that he is advancing essentially the cause of his client Every litigated case has an (e) 2 Webster's work?; 892. See also, per Bates, arguendo, in Hamilton v. St. Louis Conntj Conrt, 15 Mo. 18, qnoted in Coo. Const. Lim. 86. '^ The principal aim of society is to protect individuals in the enjoyrient of those absolute rigbts which were vested in them by the immut- able laws of nature, but whicb could not be preser\'ed in peace without that mutual assistance and interconrso which if gained by the inntitution of friendly and social communities. Hence it follows that the ^'St and primary end of human laws is to maintain and regulate these absolute rights of individuals.'* Post, book 1, p. 124. (/) "All endeavors to throw more and more unarticulated power into the hands of the pri- mary masses, to deprive a country more and more of a gradually evolving character; in one word, to introduce an ever-increasing, direct, unmodified popular power, amount to an aban- donment of self-government, and an approach to imperatorial sovereignty, whether there be actually a Caesar or not — to popular absolutism, whether the absolutism remain for any length of time in the hands of a sweeping majority, subject of course to a skillful leader, as in Athens after the Peloponesian war, or whether it rapidly pass over into the hands of a broadly named Caesar. Imperatorial sovereignty may be at a certain period more plausible than the sover- eignty founded upon divine right, but they are both equally hostile to self-government, and the only means to resist the inroads of power is, under the guidance of Providence and a liberty- wedded people, the same means which in so many cases have withstood the inroads of the barbarians, namely, the institution, the self-sustaining and organic system of laws/' Lieber Civ. Lib. and Self Gov. ch. 38. (g) Metaphysics, §§1,2. Digitized by Google Xll SUGGESTIONS FOR THE STUDY OF THE LAW. asjiecfc of its own, and is supposed to present some new combination which renders it doubtful what principle should be applied, or what circumstance should be controlling; and what the court needs is, to haye the principle pointed out, and the why and the how of its applicabiUty explained. Judges may read books and hunt up precedents for themselves; but they have not always the leisure to devote to each case that thought and reflection which the counsel is employed to give, and which may be essential to insure its being grounded on the proper basis. This is the duDy of the counsel; and when he has read what he supposes to bear upon the case, and has carefully arranged and digested his learning, he has a right to feel confident in his preparation, and in his ability to present a more forcible and convincing argument to the court — applying it, as he will, to the precise facts of the controversy — than any he can read from the authorities. Indeed, much reading of undigested cases, or even text-books, at the bar, is usually a waste of time, or at best only answers the purpose of directing the attention of the court to a great number of decisions which might, with equal profit, be specified in a written list to be handed up to the judges for their subsequent investigation. For such reading will often leave only a vague and imperfect idea that the authorities read from have some sort of bearing upon the question under consideration, but precisely what, the judge must satisfy himself afterward by making that study of them which the counsel has failed to make. The caution which involves thorough preparation for pi-actice is more need- ful in cases regarding fundamental rights, than in any others. The tempta- tion is too great in America for practitioners to open offices and tender their assistance in legal causes without any such examination of the institutions under which they live as will entitle them to be heard on questions of con- stitutional authority. It is too often — indeed, it is usually — the case, that law reading is directed mainly to preparation for an early entry into practice, in simple cases and in the lower courts, and that works on contracts and on torts are allowed to occupy the attention to the exclusion of the works on govern- ment. Something of politics the student will be inclined to learn ; and it will not be suprising if the temptations of political life shall beset him early, and lead him away into excitements that are fatal to regular and dispassionate investigations; for, in politics, one reads not so much to form judgments as to gather arguments in support of pre-existing notions; and notoriety in that field is quite consistent with great ignorance on constitutional subjects. The leaders of the political party will be read; while the jurists, whose business it has been to treat constitutional subjects from a judicial stand-point, are over- looked; and the training which one obtains in that way, while it may fit him for making an effective stump speech, goes but a little way in the preparation for undertaking such great questions of government as the lawyer of reputed ability is liable at any time to be called upon to grapple with. What sort of an argument, for instance, would have been made by Mr. Ilar- grave in the great case of Sommersett, had his reading and reflection been confined within the narrow bounds which many law students of the present day seem willing to accept as furnishing sufficient . scope for their powers? Would that eminent judge, who is admitted to have made, with reluctance, a decision, which, in the law of personal liberty, will be a landmark for all time, have been brought to the point of conviction which would insure its being Digitized by Google SUGGESTIONS FOR THE STUDY OF THE LAW. XIU made at all ? Nor are we to suppose that all the great questions regarding individual liberty have been disposed of by the decisions of Lord Mansfield and Lord Camden ; or, to pass to questions peculiar to our own country, that all doubts concerning the proper limits of federal authority were settled by the decisions of Chief Justice Marshall, so that nothing is left to the lawyer of to- day but to apply the principles that he laid down to the new cases whicli from time to time arise. Gases have arisen in our own time quite as important as McCulloch V, Maryland, or any of the other great controversies to which Judge Marshall brought his matchless logic and pre-eminent wisdom. The question of the proper bounds of martial law;(A) of the right of the federal government to make anything but gold and silver coin a legal tender in the payment of debts ;(t) of the meaning of the term "bills of attainder,** and the power of the states to impose test-oaths in order to exclude from office or professional employment those who may have taken part against the government ;(y) have recently demanded authoritative decision, and have moved the nation as profoundly as did any of the earlier cases. But there are many questions lying along the border line between federal and state authority which still remain to be discussed and settled. Whether, for instance, the government of the nation may rightfully impose stamp duties upon contracts permitted by the states, and declare the contracts invalid as a penalty for neglect to affix the stamp ;(iE;) whether it has constitutional authority to tax the salary or other compensation which a state officer receives from the state for his official services ;{l) whether the states may constitutionally bargain away the power of taxation in any given case, and whether, if they do, the federal courts are to enforce the bargain under that clause of the constitution of the United States which forbids the states passing any law impairing the obligation of contracts ; (ni) how far the grant of exclusive privileges is enforceable against a state; and many others of the like importance, are not yet transferred beyond the region of controversy, and are to be pondered, perhaps discussed and settled, by the young men who shall hereafter come upon the stage. And passing beyond the province gf the federal power, we do not find that all is plain in the constitutional law of the individual states, and that the functions of government are in every case clearly defined, and its limits definitely marked out The great question of the right of the state to teach (h) Ex parte MnUigan, 4 Wal. 2. (») Hepburn v. Griswold, 8 Wall. 603. ( j) OummiDgs V. Missouri, 4 Wal. 277; Ex parte Garland, fd. 888. (fc) The right has been qnestioned. See Carpenter v. Snelling, 07 Mass. 452 ; Clemens v. Conrad, 19 Mich. 170; Craig v. Dimock, 47 lU. 470; Griffin v. Kanney, 86 Conn. 289; Haight V. Grist, 64 N. C. 789; Green v. Holway. 101 Mass. 250; People v. Gates, 48 N. Y. 40; Sporrer V. Eifier, 1 Heiskell ; Hunter p. Cobb, 1 Bash, 289; Sammons r. Halloway, 21 Mich. 162. (/) This question mnst now be regarded as put at rest by the denial of the power by the Supreme Court of the United States in Buffington v. Day, 11 Wal. (m) On this subject see the cases collected in Cooley's Constitutional Limitations, p. 280, note. See also the dissenting opinion of Mr. Justice Miller, concurred in by the chief Justice and Mr. Justice Field, in Washington University v. Rouse, 8 Wall. 441. One must be*con- Yinoed, on reading this case, that the law upon the subject must still receive further examina- tion in the tribunal of last resort, and that the doctrine of previous decisions is not entirely satisfactory. In illustration of another question lying along the border line between federal and state anthority, and threatening to breed difficulty and danger, the reader is referred to the case of Feoton v. Farley, 9 Am. Law Beg. N. S. 401 , and the forcible note of Judge Redfleld appended thereto. Digitized by Google XIV SUGGESTIONS FOK THE STUDY OF THE LAW. religion in its schools, or of its duty to abstain from such teaching, and what precisely is meant by the doctrine of religious liberty and equality as we have engrafted it in our constitution, are still, it appears, open questions, and threaten yiolent and angry controTer8y.(n) The limits of local self-government — ^what it properly embraces, in what directions and how far it may be extended, and in what degree the state may limit and control it — are still demanding the attention of both the lawyer and the legislator, and questions concerning them become at times of universal importance.(o) Not less difficult and important are the questions regarding the proper division of governmental powers between the three departments created for their exercise. We have endeavored so to frame our constitutions that '^ the legislative department shall never exercise the executive or judicial powers, or either of them; the executive shall never exercise the legislative or judicial powers, or either of them; the judicial shall never exercise the legislative or executive powers, or either of them ; to the end that U may he a government of laws, and not of msnr{p) But what is legislative and what is executive, and what is judicial power, and who shall say when either is seized into usurping hands? The attention of the student is called to a few of these questions for the purpose of indicating the broad fields which still await the laborer who shall fit himself to enter them. The foundation for due preparation must be laid in student life if ever, and he who lays it broad and deep may find himself called upon to take part in the struggles of the giants which some day will be had over these questions. Ko small share of this preparation will be made when (n) Attention is directed to the thorough examination which this general snbject underwent in the case of Minor v. The Board of Education, in the superior court of Cincinnati (published by R. Clarke & Co., Cincinnati), and to the masterly arguments made at the bar. The case shows how important it is that the investigations of a lawyer, especially on constitutional questions, should take a wide and liberal range, and that he should make himself thoroughly familiar with the fundamental principles of the government under which he lives. The arguments of counsel are deserving, for their ability and research, as well as for the importance of the subject discussed, of the most careful and thoughtful examination. It is well with any lawyer when be is so full of his subject that he can truthfully say, as was said by the honorable Stanley Mathews, at the close of a long and masterly argument, replete with learning, and glowing with apt illustration: '* There is a world qf thingt drowding upon xrc to $ay ; but I must forbear." (o) The question of the right of a state to require or empower its municipalities to aid, by loans or donations, the private corporations who are engaged in constructing works of internal improvement, is certainly one of the most important now before the American people. There are many who question the right, on the same ground, substantially, on which patents of monopoly were declared unlawful in the time of Queen Elizabeth. *' For tht end of all thett monopolUs is for tfu private gain of the patenteet:*' not for the benefit of the public. Darcy o. AUain, 11 Rep. 84. Of late there has been a decided disposition in some states for the legislature to take to itself a large share in the government of its cities, and even the appoint- ment of municipal officers. This Is supposed to be justified by local abuses and to be within that supreme control which the state is said to have of its municipal subdivisions when not restrained by positive provisions of its constitution. But it is worthy of some reflection whether the people in enacting their constitution ever understand that they are conferring such supreme power. Local self-government is the most conspicuous and important fkct in our political history; and it cannot be doubted that every state constitution has been framed in the expecta- tion that such government is to continue as an unquestioned right. It may be seriously questioned whether the power to take away or seriously abridge this right can be considered as fidrly within any general grant of legislative power, and whether express constitutional guaranties can be needed to secure that which has always been enjoyed from the very earliest history of the ooantry, and which is understood to be the birthright of American citizena. (p) This is an extract from the constitution of Massachusetts. Digitized by Google SUGGESTIONS FOB THE STUDY OF THE LAW. XV the author before us is caiefuUy read and understood, but the standard American writers on goTemment ought also to be familiar, and what is peculiar in our system should be made the subject of special study and examination. In this field of his inquiries the student will meet with much that is crude, and with many decisions made under circumstances precluding due deliberation, and perhaps presenting to the mind only yague and indefinite notions of constitutional right ; but it is not essential that he should follow blindly the leading of any man or any court ; the light is always attainable if he will but strive for it, and the greater the confusion of authority, the greater is his credit if he can succeed in pointing out clearly the principle that should govem.(^) The admirable lectures .of Chancellor Kent every student is expected to master after he has made himself familiar with the Commentaries of Mr. Justice Blackstone. Those lectures give us a pleasant, though very much condensed, view of the general principles of the law of nations; of American constitutional law, of the sources of the municipal law of the several states, and of the absolute and relative rights of individuals. The law of corporations next engages attention. Students who read by themselves usually complete the reading of this work before passing to any other, but if, instead of so doing, they should adopt the course, after mastering the lecture upon a particular subject — as for instance the subject of corporations — of taking up one or more of the leading treatises upon the same subject, they would make more sure of their ground as they progressed, and be likely to acquire a knowledge more precise and accurate. The clear and lucid presentations of the leading principles of all these subjects made by Kent will prepare one to master the details of the inore extended work.(r) Passing then to the law of personal property and of contracts in Kent the student will find it useful in like manner to follow with the works of text writers devoted to these branches of the law.(«) Works upon particular divisions of the law of contracts, such as bailments, agency, partnership, and mercantile law generally may usefully be read in immediate sequence. Upon all these extended and exhaustive treatises will be met, with, and as the subjects are of every-day importance in the lawyer's practice, it is likely that these treatises, or others of equal value, will be presented in new editions from time to time as accumulating decisions or new circumstances shall render important^ so that the student may at any (q) Upon the subject of the federal constftntion, no work as yet supersedes the elaborate treatise of Mr. Justice Story; though if it were re-written in view of recent events and authorities, it might be made much more valuable, and be largely increased in interest to those who shall hereafter read it Some very convenient little hand-books, presenting analyses of the constitution, and some of them giving the decisions of the courts under its several clauses, are readily attainable. The foundations of federal constitutional law may be traced very satis- factorily in the pages of the Federalist, and Elliot's Debates will be usefhl for referenoa Upon International law Mr. Wheaton's treatise still retains the first rank. (r) Upon corporations, the best now in use is the treatise by Angell h Ames. It seems, however, to prove repulsive to students, though almost indispensable to the practicing lawyer. Grant on Corporations is also a good work, and the law on the same subject is also set forth Tery folly and clearly by Mr. Redfleld in his work on railways. (s) Williams on Personal Property is an excellent work. Metcalf s Principles of the Law of Contracts is a good introduction to this subject, but the student must not content himself with that There are several elaborate treatises on contracts now in use; that by Mr. Parsons being the general fkvorlte. Browne on the Statute of Frauds is valuable in the same con* nection. Digitized by Google XVI SUGGESTIONS FOR THE STUDY OF THE LAW. time have in some one or more of them a satisfactory and reliable yiew of the existing law. {t) When the student, in pursuing this course, shall reach the law of real estate, it would be well for him to pause for a moment, to consider some of the circumstances which are apt to render its study superficial. There is no lack here of abundant and safe guides, for the works upon real estate law are numerous, profound and exhaustive ; but that they do not prove attractive must be confessed, and that they fail to receive that attention which the importance of the subject demands is evident The student who has studied the law of contracts faithfully and with iirterest will not unfrequently suppose he may safely slight the law of real estate, and, after acquainting himself with the ordinary forms of conveyancing, and a few .of its familiar rules, will pass on to other subjects in which his interest is more readily engaged. Upon no other bi*anch of the law has so much patient thought and so much profound learning been expended as upon the law of real estate. Some of the treatises in this department have been the admiration and delight of the ablest cotemporary lawyers, and are never read without leaving profoundly impressed upon the mind their wonderful erudition and thoroughness. For this very reason, and because their proper study tasks the mind so severely, they have been shunned by the student. Works like Littleton's Tenures, Feame on Oontingent Remainders, Saunders on Uses and Trusts, and Sugden on Powers, will not willingly be selected by the beginner as his text-books, if he can make himself believe that, after reading Blackstone and Kent, he will attain the same practical end by familiarizing himself with the common forms of con- veyancing, and with the questions which most often arise between vendor and purchaser. And the whole tendency of modem legislation concerning real estate has been to lull the student into a false security, and to incline him more and more to rely upon such superficial knowledge as might answer the purpose of the conveyancer, but which fails to embrace the questions of nicety and difficulty. In both England and America the attention of some of the ablest minds has been directed to a reform in the law of real estate, with a view to relieving it of unnecessary and cumbrous forms, useless technicalities, and fictions which answer no useful purpose. The changes they have intro- duced have been great; in some respects very radical: and their influence has been to impress us with the belief that the ancient learning in real estate law has become obsolete and useless, and that time can be more profitably spent in acquiring a practical knowledge of the manner in which business is now done, than in poring over the musty books which were the vade mecums of a past age, but which have now become mainly matters of antiquarian interest Other important circumstances, which have operated mainly in the newer states, have had a tendency in the same direction. Heal estate has been cheap ; we have been near the source of title ; conveyances of any particular parcel have not generally been numerous, nor the title complicated; the modes ol transfer have been tolerably unifonn and well understood : we have a general (0 Edwards on BaHmentSi and the work by the same author on Bills and Notes are carefiil and judicioas treatises, and are always read with satisfaction. The works by Mr. Parsons on Notes and Bills, and on Partnership are also valuable. Collyer on Partnership is preferable to Story. Mr. Smith's treatise on Mercantile Law is an excellent one, and Mr. Parsons has written acceptably on the same subject. Digitized by Google SUGGESTIONS FOR THE STUDY OF THE LAW. XVll system of registry designed to give purchasers information concerning the conveyances which have been made ; and, as every man of plain common sense is able to understand all these, one naturally comes to think that the nearest justice of the peace is competent to transact the business connected with his purchases and sales, and that his own good sense is sufficient to protect him against flaws in titles, or against being entrapped through the means of inadequate conveyances of the land he buys. Unfortunately he sometimes discovers, when too late, that unaided good sense is not always an infallible guide in matters of law, and that one who relies upon it implicitly is in the proper condition of mind to be made the victim of misplaced confidence. Many a man has lost his all by assuming the sufficiency of his own knowledge and judgment in real estate matters, and by resting satisfied with his own examination, or that of his county register of deeds, where he ought to have called in the best legal advice that was attainable. Sharp schemers do not overlook this fact^ and many of them thrive by it; but we should be obliged to confess, if interrogated on that pointy that many legal practitioners also do not properly appreciate the nature of their task when called upon to advise regarding titles, and that the assistance they assume to render is admirably calculated to lead astray.(t«) («) Of this there could not possibly be a better illustration than the implicit reliance which Is apt to be placed upon the county records of deeds as a means of ascertaining precisely the situation of the title to a particular parcel of land. A Utile reflection will convince us that these records cannot give all the information requisite : that it is entirely possible for perfect titles not to appear upon them at all, and that often they will indicate an indefeasible right in one who, in fact, has no title whatever. Indeed, in many cases, the nature of perfect titles is such that they cannot be spread upon the records, aud in all cases there are important facts concerning which the record is silent, and which must necessarily be determined by extrinsic inquiries. To illustrate this, let ns suppose that a lawyer's client brings him an abstract (Vom the county recorder's office, and requests his opinion as to the title which it describes. Let this abstract be in the following form : " Southwest quarter of section 12, town 9 south, range 2 east, Ohio. 1. Entered by John Hemingway and patented by U. S. to him August 1, 1SS6. 2. John Hemingway to William Jackson, warranty deed; dated September 10, 1886; recorded March 18, 1888, in liber B of deeds, page 80. Duly witnessed and acknowledged. 8. William Jackson to Richard Benson, warranty deed; dated March 18, 1888; recorded same day in liber B of deeds, page 81. Duly witnesSL»d and acknowledged. 4. Richard Benson and Harriet, his wife, to James Bylcs; quitclaim deed; dated October 1, 1862; recorded same day in liber Y of deeds, page 292. Executed in the state of New York and properly certified. 5. James Byles, by William Smith, his attorney in fact, to Edgar Bennett; warranty deed; dated July 16, 1868; recorded October 12, 1868. In due form of law. The records of this office show no mortgages or other Hens upon the land, and the title appears to be perfect in Edgar Bennett. John Doe, register of deeds." Nothing apparently could be more straightforward and business-like than this document, and one is probably safe in saying that the majority of purchasers would rely upon it im- plicitly, and would receive and pay for Mr. Bennett's conveyance without suspicion that it could possibly prove defective. But a prudent conveyancer would feel no such reliance, but would treat this document as an assistance merely in the necessary investigations; as a guide in his inquiries, and not as in and of itself presenting the needed information. He would, therefore, inform his client that further investigation would be necessary; that a register of deeds could not make a title good by certifying to its correctness, and, indeed, could not properly give such a certificate at all, and that all the facts which are stated in this abstract are not inconsistent with a worthless claim in the party here stated to have a perfect title. And he Would thereupon proceed to obtain from other sources the information which the record conld not give. 1. By inquiries of his client, of the present claimant, and of other sonrces, he would endeavor to ascertain as much as possible concerning the several grantors mentioned in the abstract of title, where they lived, and what was their connection with the possession of the land, and their identity with the grantees of the same name. Also, whether other parties have Vol. I.— B. Digitized by Google XVIU SUGGESTIONS FOR TilE STUDY OF THE LAW. There are not many things in the old law of real estate which the lawyer will find it without importance to know, and his knowledge will sometimes be called into requisition under circumstances which preclude a reuort to the at any time been In possession of the land, and if so, for how long and under what claim of right. All these inquiries may bo of the utmost importance, as we shall soon perceive, and aided by them he will proceed to consider the successive st«ps in the chain of conveyances. 2. The patent by the United States to any one may generally be assumed to convey the title, (he United States having been the original owner of all the region in which this land is situated. Still, it is poKsible for such a patent to be void. The government may. previously, have patented the same lands, and the second patent may have issued through mistake, in which case it would of course be void. Or the government after having once parted with its title may have acquired some right again — as sometimes happens in enforcing its demands against public debtors — and, in this case, its subsequent conveyance could give no better title than the government had acquired by its purchase. It would be necessary, therefore, in such a case to .scrutinize the title of the government with the same care that would be requisite in the case of any other proprietor. 8. Coming to the conveyance by Hemingway, the first inquiry which suggefts itself is, whether he be the same person to whom the government conveyt'd ? Identity of name is no more than prima fade evidence of this fact, and may not be even so much, if his residence, as given in his conveyance, appears to be different. Let us say here, once for all. that a record can never identify partiet: outside inquiries are absolutely essential for this purpose, and when it is so easy for one man to personate another, and when besides there are often many persons of the same name, these inquiries cannot be too particular. A conveyance by any other John Hemingway than the one to whom the governmei^t conveyed, or by any person falsely assum- ing his name, would of course be void; and no title apparently good of record could protect a purchaser against the claim of the real ))atentee. 4. Suppose the inquirer to have satisfied himself of the identity of the patentee with the gprantor of Jackson, a further question is, whether he had made any other conveyance, or any mortgage of the lands previous to the recording of the deed to Jackson. And this brinps us to notice the principal object of the registry laws, which is, to give notice to purchasers of any previous convei/ances or liens by the person of whom they buy. A purchaser who examines the records and finds no conveyance by his vendor has a right to assume that none exists; and if he then receives a conveyance in good faiih and for value paid, and places it upon record at once, he is protected by it, even though there be a prior convoynnce also obtained for value. As hetween two bona Jide purchasers, the registry law gives protection to him who was suffi- ciently diligent and prudent to have his d<^ed immediately recorded, and the deed of the other, even though prior in point of time, is void as to him, provided he had no notice of it when he bought, received the conveyance and paid the consideration. 5. As no wife appears to have joined in Hemingway's deed, it will be nece.s.snry to inquire whether he was at the time a married man, and if so, whether his wife i.s still living. If she is, she has or may have a right of dower; and the facts regarding this will need investigation. 6. In the case of this and also every subsequent deed, it is important not to be satisfied with the simple statement that it is a *' warranty deed." but to examine its terms and see what the covenants are, and also whether it gives any Intimation of any fact which qualifies in any way the title of the grantor to the possible prejudice of a purchaser Although there are no mortgages of record, there may be some in existence, and the deeds may give information concerning them. Such information the purchaser is bound by, for it is a general rule that a man is regarded as notified of whatever appears in the instruments which constitute his chain of title; and whether he actually re«ids them or not he is equally chargeable with knowledge of their contents. J.nckson ». Neely. 10 Johns. 874; Brush v. Ware. 15 Pet 93. Daughaday V. Paine. 6 Minn. 452 ; Reeder v. Barr, 4 Ohio, 446. If therefore a deed refers to an unrecorded mortgage, or to any other outstanding claim, it becomes neces.sary to ascertain Its present condition and validity; for a purchaser will take subject to the rights under it of which he is constructively notified. It is important also to see that the deeds contain the proper words of inheritance. • See po^, book 2, page 107. and notes. 7. The attestation and acknowledgment of the deed are to be compared with the statute In force at the date of execution, to see if they constitute a compliance. And it is always to be borne in mind that the record of a deed not executed as required by the recording Inws is a mere nullity, and cannot be used a^ an instrument of evidence. Clark i'. Graham, n Wheat. 577; Choteau v. Jones, 11 III. 800; Pope v. Henry, 24 Vt. 5^)0; Galpin r. Abbott. 6 Mich. 17; Work V. Harper. 24 Miss. 617; Patterson v Pease, 5 Ohio, 190. If there is any defect in this particular, the original deed should be obtained for the purposes of having the proper correction and a new record made. 8. Coming to the deed ft'om Jackson to Benson, the same questions regarding identity am to be asked, and the same precautions observed in other respects which have already been pointed out Digitized by Google SUGGESTlOrJS FOR THE STUDY OF THE LAW. XIX books for careful investigation. The man who in extremis sends for his legal adviser to draft a complicated will may be blamable for delaying so important a business until the immediate urgency is so great, but in this regard he is only equally negligent with a great many of his fellows, and the lawyer must 9. The deed from Benson to Byles is by quitclaim. A deed without covenants is as effectaal to convey the vendor's title as any other, but the fact that the vendor declines to insert cov- enants in liis deed when his title is apparently perfect, is a circumstance which always sug- gests doubt in respect to the title, and renders additional caution important. Generally the vendor who has no doubt regarding his title will not hesitate to give the ordinary deed of warranty, and the purchaser, if he is buying for full value, will insist upon having it. It is a reasonable inference when a mere quitclaim is given, that botii parties su{)pc>sed the title might prove defective, and that the purchaser has bought at a discount in consideration of the risk he assumed. And it may prove, on inquiry in this case, that the William Jackson who conveys was not the purchaser from Hemingway, but only one of several heirs at law who had sold and quitclaimed his undivided interest. In such case the interest of the other heirs would not be afifected by his conveyance, and the right which could be claimed by his grantee, though apparently good to the whole land, would in reality be valid for his undivided interest only. 10. And this leads us to remark, that the title derived by descent or devise from a deceased person does not usually appear on the records of the office of the recorder of deeds, and in some states there is no provision of law by which it can be made to appear. When a person dies leaving no will, the title to his real property vests at once iu hist heirs at law, subject to be divested in caso it should become necessary, in the course of administration, to resort to it as assets for the payment of debts. The heirs may sell their right, and no other steps are essential for the purpose than would be required if their title had come by purchase. One who should buy of them must take subject to the following contingencies : A will of the ancestor may be discovered and probated, which shall devise the estate to other parties. Administration may be taken on the estate, and debts proved to an amount exceeding the personal assets, and then it may be necessary to sell the real estate in order to pay them. Each heir can convey his undivided interest only, and the purchaser at his peril must ascer- tain the number and identity of the heirs, and the extent of their respective interests. Even where an estate is being duly settled under the statjite. the probate records are not conclusive upon these, subjects, at least before the final decree of distribution. The purchaser must also, at his peril, ascertain that the heirs from whom he buys are of the proper age to make con- veyances. 11. As the Benson deed appears to have been executed in the state of New York, it is im- portant to ascertain what provision was made by the law of Ohio for the record of such deeds. The law of the jurisdiction where the hind is — the lex rei *!<«— is the law which must govern such conveyances; and a deed, perfectly good in New York, where it is executed, may prove insufficient, under the law of Ohio, where the land lies. The statutes of the several states will be found to provide in what manner deeds of lands therein, when made abroad, shall be executed; and the deed must, therefore, be compared with the statute, to see if there has been a compliance. And, as there is no common law on this subject to help out a defective con- veyance, nothing short of a substantial compliance with the statute will avail. A defective deed may amount to a valid contract of sale, the specific performance of which may be enforced; but a purchaser wants the title, and not a lawsuit. 12. Benson's deed to Byles appears to have been executed more than twenty years after he obtained his title. It is possible that in this inteival his right may have been extinguished by an adverse possession. This consideration is, of itself, suflficient to demonstrate the importance of making inquiries regarding the occupation of the land; but they would also be important, though in a less degree, where sufficient time had not elapsed for the statute of limitations to attach. It Is a rule, generally, though not universnlly, recognized, that, where onebuyt land in the possession of another, he takes it subject to the rights qf the possessor y whatever they may be. Lea V. Polk Copper Co., 21 How. 498; Hughes v. ifnited States, 4 VVal. 232; Morrison t. Kelly, 22 111. 610; Coleman tr. Barklew, 8 Dutch. 357; Helms r. May, 29 Geo. 121 ; McKee r. Wilcox, 11 Mich. 858. The exception to this principle is where the possessor sets up a claim in opposition t<) his own conveyance. Scott v. Gallagher, 14 S. and R. 833; Newhall r. Pierce, 6 Pick. 450; Bloomer r. Henderson, 8 xMich 895. Or where possession by him is consistent with the title appearing-of record : Patten v. Moore. 82 N. H. 884; Truesdale v. Ford, 87 III. 210; Elly o. Wilcox, 24 Wis. 681. See further, McKinzie r. Perrill, 16 Ohio St. 168; Crassen V. Swoveland.' 22 Ind. 434. A man, therefore, who is in possession under a lease or an un- recorded deed is protected by his possession, and other persons cannot acquire equities as against him, where they buy without taking the trouble to inquire into the nature of his claims. 18. Benson's wife appears to have united in his deed, for the purpose of releasing her right of dower. As to this, it is important to know. Digitized by Google XX SUGGESnONS FOR THE STUDY OF THE LAW. be prepared for calls of this character, and ready to respond to them. The moat difficult and intricate questions he is ever compelled to grapple with will sometimes present themselves when the proposed testator states his wishes regarding the settlement of his property, and in many cases they must be met promptly and settled without delay. To enable a lawyer to enter upon such a task without misgivings, he must have fitted himself by a thorough study of the elementary rules as presented and discussed in the leading treatises; and if he has contented himself with a smattering of real estate law — such as may enable him to buy and sell real estate and draft common conveyances, he has no right to jeopard the interests of those he assumes to aid, by drafting an Whether the execntion and acknowledgment of the deed by her were in dae form, as required by the statute ; for, if not, they are void. A married woman has no general power to release her contingent right of dower during coverture; and can only do so in the manner the statute has prescribed. The strictness with which statutiiry forms are required to be observed may be seen in some of the cases which Mr. Washburne has collected. 1 Washb. Real Prop. 200, et seq. Also whether the wife was of lawful age at the time of executing the release. The statute which authorizes the wife to release her contingent right of dower does not relieve her of any other disability which she may be under, besides coverture; and. therefore, if she be, in law, an infant, her deed is void. Hughes v. Watson. 10 Ohio, 127; Priest v. Cummings, 16 Wend. 617, and 20 id. 888; Jones v. Todd, 2 J. J. Marsh. 359. Some of the states, however, it is believed, have changed this rule. 14. The deed from Byles to Bennett appears to have been executed by attorney. Was this attorney duly authorized ? To answer this question iutciligently. we must have the power of attorney before us. It must be under seal, and its terms must be such as to empower this particular deed to be executed. If the examination is satisfactory on this point, the purchaser would need to go still farther, and ascertain whether or not it ixMiiained unrevoked when the deed was made. Byles, in the mean time, may have died or gone into bankruptcy, or he may have expressly revoked his letter of attorney by an instrument for the purpose, duly executed and recordeds If satisfied that the power remained in force, the next question is. whether it has been duly executed. The deed made under it should be executed and acknowledged in the name and as the deed of the principal by William Smith, his attorney, and not in the name and as the deed of the attorney himself. Elwell v. Shaw, 16 Mass. 42; Barger v. Miller, 4 Wash. C. C. 280; Thurman v. Cameron, 24 Wend. 90; Harper ». Uampton, 1 Harr. and J. 709. If defective in this particular, e.xtrinsic evidence cannot be resorted to for the purpose of showing that the attorney designed to make the proper conveyance which he had failed to execute. Wilkinson v. Getty, 13 Iowa, 157. 15. As James Byles executes the deed alone, inquiry must be made whether at the lime he was a married man, and if so, whether his wife is still living. And this may be important for a further purpose than to ascertain whether a dower right exists. The land may have been the kofne$tead of Byles; and if occupied as such, it may be found that, at the date of this deed, the statute of the state forbade its alienation except by a deed in. which the wife joined. 16. When satisfied upon all these points there are still others which present themselves for investigation. There maybe tax titles upon the land; it may have been sold in judicial pro- ceedings against any of the several owners; any of them may have gone into bankruptcy and lost his title thereby; any of the deeds in the chain of title may be furged, and therefore void; any one of the grantors may have been an infant, insane or idiotic; there may be suits pending in chancery which affect the liind; and the prudent lawyer 'who is employed to investigate the title will ne\'er rest satisfied until ho has made his inquiries cover all these points. The title here supposed is one of the most simple character, and presents none of the abstruse or difficult questions which are constantly arising in real estate transactions. If one link in the chain of title happens to be a will, new and more difficult questions will arise. It may then become important to know whether the rule in Shelley's case is in force in the state or not; for the nature of a devisee's estate, whether a fee or not, may depend upon It. And in any case of a devise it will bo important to ascertain whi'thor the will has been duly probated and the estate duly settled; for until then, the title of the devisee is subject to contingencies. If one link is a judicial sale, or a sale by executor, administrator or guardian, or a tax title, the lawyer ought to examine every step in the proceedings caiefully; to take nothing for granted, but satisfy himself from his own inspection that every thing is substantially correct and regular. If an examination is being made for the purposes of a suit, it ought to be equally particular and careful, and the lawyer ought to see not only that the title is good, but that it is capable of being proved. Sometimes he may be convinced by his inquiries, and yet not supplied with the means of proof. He should remember that it is one thing to satisfy himself, and another to Digitized by Google SUGGESTIONS FOE THE STUDY OF THE LAW. XXI instrument, the legal effect of which he can only guess at A layman would be even less likely to mislead, for he would generally abstain from the use of technical language, which, in the hands of persons who are employing it without sufficient knowledge, is always liable to express a meaning whicli is not in the mind of him who uses it It is impossible to urge too strongly upon the young men who are hereafter to come to the bar, the importance of thorough preparation in the law of real estate; and it may tend to their en- counigement in so doing to add, that as lands become more valuable and wealth increases, in no other branch of the law is real preparation and genuine attainment likely to be better appreciated or better rewarded.(t;) There is a class of real estate questions which is peculiar to this country, and in handling which the student will not be greatly aided by the old text-books or old decisions. They are, nevertheless, questions which arise often, and which, hereafter, there will from year to year be still more frequent occasion to deal with. We refer to those which relate to the validity of sales of lands for the non-payment of the taxes assessed upon them. We do not know how the law- yer, who is disposed both to labor and to think, could well be called into a more tempting field than the examination of these questions. Large as has been the number of decisions regarding these sales, and varied as have been the questions passed upon, almost every new case that now arises presents some unusual com- bination of facts and circumstances which enables some new and perhaps difficult question to be raised. The difficulties are enhanced by the different views which different classes of minds are disposed to take of this species of title, and of the maxims of law by which they should be governed. If we look only to the interest of the state, and regard the collection of the tax at all haz- ards as the prime object to be attained, we may be disposed to press governmental power to an extreme which would deprive the individual of the benefit of those principles which have been shields for the protection of private property from before the time of Magna Charta. If, on the other hand, we look mainly to the interest of the individual, bearing in mind the great variety of causes which prevent the prompt payment of taxes — causes most often operating in the cases of minors and other persons incapable or unaccustomed to business, and remem- bering also the merely nominal price usually paid for lands at tax sales, we may be disposed to look upon these sales as a species of state robbery, to disappoint and defeat which, the courts should be vigilant to seize upon every reasonable supply legal evidence which can be laid before a jury. The memorandum of his investigations which he makes, as they progress, ought to give fall information, not only for his own present use, but for the purposes of a trial if any should be had, or for the information of any subsequent purchaser from his client who may have occasion to go over the same ground. A lawyer is inexcusable who trusts the results of such investigiitions to memory alone. These few hints will suffice to show h<»w utterly insufficient and misleading are the ordinary abstracts of title upon which so many purchasers rely} how impossible it is that the records should give completely the information regarding the true state of titles, and how important that one who would examine titles should not only have some knowledge of law, but should make his investigations with his mind awake to all the numerous and diversified circumstances which may affect the title, even in the cases which upon th«' sui-face ap|)ear the simplest. And this note is inserted, not as indicating all the points to be borne in mind in these cases, but as illustrating the necessity of caution and thoughtful vigilance. (r) Mr. Williams's little work on Real Property is an admirable assistant to the student, and an agreeable irttroduction to the Digest of Cruise. Our appreciation of Mr. Washburn's Trea- tise* is shown by the firequent references to it in the following work. No book is more reliable; and the same mayl)e said of the treatise by the same author on Easements. Jarman on Wills, is the best English work on that subject at the present time, but is nearly superseded in this country by the treatise of Judge Redfield. Digitized by Google - XXll SUGGESTIONS FOR THE STUDY OF THE LAW. pretext. These diverse views find able representatives in the legal profession, who press them npon all occasions; but the lawyer who is ready to accept them as extreme views, and to examine tax titles with the same unbiased mind which he would bring to the consideration of a mortgage, or of a conveyance by bar- gain and sale, will not fail to find that there is ample opportunity for the display of legal ingenuity and acumen, and for the satisfactory application of funda- mental legal maxims as the new and peculiar circumstances, which these Ciises so often exhibit, present themselves. The thoughtful lawyer cannot doubt that the old and well-settled principles of law are to be applied in these as in all other cases, nor that they are sufiicient, if rightly applied, for the protection alike of the interest of the state and of the individual rights of the citizen; and if he enters upon his investigations with these points conceded in his own mind, much of the difficulty supposed to be inseparable from this species of conveyance will disappear, as he comes fully prepared to encounter it. The maxims of individual right are all limited, restrained and qualified by others which regard public duty and state necessity; each and all, when properly understood, supply light for the guidance of the lawyer in his examination of the numerous and often informal and imperfect records which constitute the evidences of title in these cases, and if he possesses the necessary industry and perseverance to make a complete and careful examination of each case in which his services may be required, the questions of law involved will not often fail of a satisfactory solution under his intelligent and persevering attempts to mas- ter them, (w) If the law of real estate proves generally -unattractive, criminal law, on the other hand, is likely to excite the imagination and enlist the interest of the student, who will look forward to its pi-actice as the field of his most striking and inspiring triumphs. Yet as these triumphs are popularly supposed to be achieved mainly by the power of eloquence, and by appeals to the sympathies (w) To illnstrate the manner in which the principles of law which are applicable to these cases affect and qualify each other, the following may be mentioned : That the state has an undoubted right to compel every species of property within its limits to sustain its proper proportion of the burden of supporting the government, and to that end, if necessary, to divest the owner's title by a public Siile. That the owner has an equal right to have the proceedings for levying a tax upon his prop- erty prescribed in advance by law. so that he may understand what is his duty regarding its payment, and how ho may comply with that duty : and he is not to be dispossessed of his prop- erty until he is in default for failure to perform his obligations to the state. That statutes for the assessment and collection of taxes are to be construed like other statutes; not with a strictness that shall defeat their purpose, nor with a liherality that shall enlarge their terms; the object to be attained being to ascertain the meaning of the legislature in their several provisions, and then to give them effrct. That whatever securities the legislature has provided for the protpction of the interest of the taxpayer, are to be understood as thrown around his pn»p.*rty to prevent its being appropriated improperly, and they therefore constitute walls of protection which the other departments of the government cannot throw down or leap over. That the letter of the law is not to be regarded rather than Its spirit: and as a strict and literal compliance with provisions which are unimportant to the individual assessed is extremely improbable in proceedings of this description, where the steps to be taken are numerous and the persons vvho are to take them generally unlearned in the law, the legislature, it is to 1)0 assumed, did not intend to make such literal compliance a condition precedent to the collection of the public revenue, and the immaterial variations may be disregarded or cured retrospectively. Other rules might be specified, but it is not important to our present purpf>se; the chief diffi- culty in these cases being after all in the proper application of these, and in determining what regulations of statute are to be regarded as directory, and what, being prescribed for the pro- tection of the rights of the citizen, are to be treated as imperative. Mr. Blackwell's Treatise OD Tax Titles is a very useful one, to both the student and the practicing lawyer. Digitized by Google SUGGESTIONS FOB THE STUDY OF THE LAW. XXIU 8n'l the jNissions of men rather than hy the force of dry legal logic, or the careful mastery of the rules of law, the embryo advocate needs to gnard his inclinations carefully, lest he may find himself in his preparation relying too exclusively upon showy attainments, and neglecting that solid foundation in the law without which the most shining natural abilities, and the most careful and elaborate training in elocution, will at times prove of no avail If the leading principles of criminal law are plain and easily mastered, if the pleadings are simple and the practice without complication, there is nevertheless a continual possibility that some unexpected and difficult question may arise for which the works on criminal law state no precedent and furnish no solution. What criminal lawyer in large practice can tell whether the fate of his client in the next case in which his services may be demanded is to turn upon mere questions of fact, or on the other hand to depend upon some important princi- ple of constitutional right, some difficult question regarding the right to property, or some point in medical jurisprudence, involving not only some knowledge of medicine and of physiology, but an intimate acquaintance, also, with human nature, and with the peculiarities and vagaries of the human mind? Lord Erskine, in building up that splendid reputation as an advocate of which he was justly so proud, did not shrink from any labor or spare himself any exertion which could make more complete and ample his ability to grapple with the questions of law and of fact which he could anticipate as likely to arise in the cases he was to undertake. At this distance of time, and when it cannot be expected that our feelings should be enlisted to any considerable degree, in the questions he discussed, we read his speeches with delight, and study them as models of forensic eloquence. But we discover that they are very far from being mere appeals to the sympathies, the feelings or the passions of the men to whom they were addressed. On the contrary they were pervaded with such knowledge of the laws and constitution of his country, and he discussed the questions involved with such fullness and readiness of information, and such force of logic, that our wonder is as we read them, not that their effect was so power- ful and their force of conviction so great, but that, in cases where he made the right appear so clear, it should ever have been seriously contested. We take up, for instance, the trial of Hardy, and note in what a masterly manner he handled the successive questions as they arose, and we are irresistibly impressed that the great advocate was an orator in the highest and best sense, whose aim was to come to the discussion of such great causes with his mind well stored with all the materials of attack and defense which study or labor could gather, and who so far accomplished the end sought, that he was enabled to teach a government then tending strongly toward despotic authority, a salutary and much needed lesson regarding the freedom of thought and freedom of discus- sion, and one which will never be unlearned while free institutions continue to be the heritage of the people of England, (x) (x) Lord Campbell said of Erskine 's speech in support of the right of juries in the Dean of Asaph's case, that it displayed, " beyond all comparison, the most perfect union of argument and eloquence ever exhibited in Westminster liall. So thoroughly had he mastered the subject, And so clear did he make it, that he captivated, alike, old black letter lawyers and statesmen of taste and refinement.'* Quintilian, who lived in an ago and under a system of forensic pleading, in which oratorical powers, without solid attainments, might be made much more available than now under our sys- Digitized by Google XXIV SUGGESTIONS FOB THB STUDY OF THE LAW. It will be interesting to quote in this connection what was said of Alexander Hamilton by one of his gifted cotempomries : ''It is rare that a man, who owes so mnch to nature, descends to seek more from industry; but he seemed to depend on industry, as if nature had done nothing for him. His habits of investigation were very remarkable; his mind seemed to cling to his subject till he had exhausted it Hence the uncommon superiority of his reasoning powers, a superiority that seemed to be augmented from every source, and to be fortified by every auxiliaiy; learning, taste, wit^ imagination and eloquence. These were embellished and enforced by his temper and manners, by his fame and his virtues. It is difficult, in the midst of such various excellence, to say in what particular the effect of his greatness was most manifest No man more promptly discerned truth; no man more clearly displayed it; it was not merely made visible, it seemed to come bright with illumination from his lips. But prompt and clear as he was, fervid as Demosthenes, like Cicero, full of resource, he was not less remarkable for the copiousness and completeness of his argument, that left little for cavil and nothing for doubt Some men take their strongest argument as a weapon, and use no other; but he left nothing to be inquired for more, nothing to be answered. He not only disarmed his adversaries of their pretexts and objections, but he stripped them of all excuse for having urged them; he confounded and subdued as well as convinced. He indemnified them, however, by making his discussion a complete map of his subject, so that his opponents might indeed, feel ashamed of their mistakes, but they could not repeat them. In fact it was no common effort that could preserve a really able antagonist from becoming his convert; for the truth, which his researches so distinctly presented to the understand- ing of others, was rendered almost; irresistibly commanding and impressive by tem, Justly ranks thorough preparation among the first and highest requisites of the advocate; or, as he expresses it, as •'* constituting tlie foundation of pleading." *' Very few orators," he truly remarks, "take sufficient trouble in this respect; for, to say nothing of those who are utterly careless, and wlio give themselves no concern on what the success of a cause depends, if there be but points which, though wholly unconnected with tlie case, but relating to char- acters involved in it, and leading to the usual flourishes on common-place topics, may afford them an opportunity for noisy declamation; there are some also whom vanity perverts, and who (partly pretending that tbey arc constantly occupied, and have always something which they must first dispatch, tell their client to come to them the day or the very morning before the trial, and sometimes even boast that they received their instructions while the court was sitting; or, partly assuming a show of extraordinary ability, that they may be thought to understand things in a moment, making believe that they conceive arid comprehend almost before they hear), after they have chanted forth, with wondorftil eloquence, and the loudest clamors of applause from their partisans, much that has no reference either to the judge or to their client, are con- ducted back in a thorough ]>erspiration, and with long train of attendants, through the forum." How vivid is this picture of some advocates, still to be met with, whose endeavor is to try the parties and witnesses rather than the cause, and to display themselves rather than exhibit the rights of their clients ! The applau.se of an unthinking crowd may be easily and cheaply excited in this manner, but sensible men estimate such advocates at their true value, and juries are seldom much influenced by them, while courts only endure them. On the other hand, com- mendation like that which Lord Mansfield gave the counsel in Sommersett's case is worth striving for; not for the compliment merely, but because he who has once earned it may rely afterward upon having the ear of the court, and upon being looked to by the Judges for instruction and assistance when the mere declainier would be heard but not heeded. " I can- not omit," said he, *' to express particular happiness in seeing young men, just called to the bar, have been able toprofi.t so muoJi by their reading." It was a difllTent cla.«is of practitioners that Chief Justice Gibson was listening to when ho congratulated himself on having achieved a' great judicial triumph, inasmuch as he was able to keep liis eye upon a dull advocate while his mind was occupied with more agreeable objects ! Digitized by Google BU00ESTI0N8 FOR THE STUDY OF THE LAW. XXY tlie, love and reverence wliich, it was ever appai*enty he profoundly cherished for it in his own/'( y) In America we meet with few cases of lawyers of high standing and eminent ability who give themselves exclusively to the defense of criminal cases, and few of that class would find employment sufficiently steady and remunerative if they desired to do so. The criminal lawyer is too apt to be a man who is tainted somewhat by his associations, and who fits himself for defending vile characters by imbibing more or less of their vicious tastes and habits. But the ablest cbunsel may be called sometimes to step from the highest tribunal in the laud into the criminal court; as Daniel Webster was called in to assist in bringing a criminal to justice, and William H. Seward to save a demented negro from the punishment of a criminal. And while we say of the prepara- tion for such cases, that it must be begun early, on broad and deep foundations, we should add also, that mere rhetoric, in the lower and more common acceptation of that term, — the power to control the voice, to use readily beautiful or ingenious figures of speech, and to accompany them with appropriate gestures — constitutes but a small part of this preparation. The most perfect address in point of oratorical accuracy may fall dead and lifeless, or even be the subject of ridicule, in an important criminal cause, when a plain and straight-forward argument, made upon full preparation, but without attempt at display, will lead the minds of court and jury irresistibly to the advocate's conclusions, (z) The caution above all othera which the student needs, when he feels himself gifted with fine 'oratorical ability, is to beware lest he find himself relying upon it too exclusively, and neglecting that hai-d labor which the less gifted would be compelled to perform, but the benefit of which is always in proportion to the natural powers which it supplements, {a) The innovations which have been made in criminal procedure in modem times have been so great that a trial on a charge of crime now bears as little resemblance to one in the time of the Stuarts, as the service in a Christian church does to the heathen sacrifice to idols. We have at last, we think, so moulded and shaped the criminal practice as to give the prisoner the full benefit of the maxim that he shall be presumed innocent until proved guilty; which in former times was but a mockery. But some of the new protections devised for innocence need to be carefully guarded to prevent their proving delusive Of) Works of Fisher Ames, vol. 2. p. 260. (z) Luther specifies among the requisites for a good preacher: "First, he should teach sys- tematically; secondly, ho should have a re«'\dy wit ; thirdly, he should be eloquent; fourthly, he should have a good voice; fifthly, a good memory; sixthly, he should know when to make an end; seventhly ho should make sure of his doctrine; eighthly, he should venture and engage body and blood, wealth and honor, in the word; ninthly, he should suffer himself to be mocked and jrered of every one.*' Every one of these is equally imporiant in the criminal lawyer, and some of them are indispensable. He must "make sure of his doctrine;" *' ho Bboold know when to make an end;" he should enlist heart and soul in the cjiuse; and if public opinion runs strong and fierce against his client, he must ** suffer himself to be mockcMl and jeered of every one.'* rather than allow to be sacrificed the interests of one who has confided reputation, liberty, perhaps life, to his protection. The calm future must be trusted to set him right, andifhe never quaiU before the clamor , the trust will not be disappointed. (a) All of Sneridan's speeches, which so glow and sparkle now as if they were the spontane- ous outbursta of g«»nius, were in reality the results of the most persevering labor. The won- derful power of extemporizing on the part of the elder Pitt, is said to have been the result of severe training at Oxford, and aft<;r he entered parliament, he was content to delay address- ing the house until afler he had thoroughly studied it, and understood the audience he was to speak to. Digitized by' Google XXVI SUGGESTIONS FOR THE STUDY OF THE LAW. snares. It has been thought — for an instance — that the old practice under which the accusei-'s story could be heard by the jury, but not that of the prisoner, was unphilosophical and even barbarous, and in some of the states the rule has been established by statute, that whoever possesses knowledge of the facts shall be heard, and the jury shall judge of the reasonableness of his story, and to what extent any interest he may have in the result ought to affect his credibility. This innovation has been opposed on two grounds, 1. As dangerous to public justice, inasmuch as every accused party will exonerate himself by his evidence, however falsely ; 2. As dangerous to the prisoner, inasmuch as the permission to give evidence is equivalent to a command, because if he fails to testify his conduct will be subject to the worst construction ; and in this way we in effect establish an inquisitorial trial, and deprive accused parties of the benefit of the constitutional maxim that no man shall be compelled to give evidence against himself, {b) To deal properly with such changes, the lawyer ought to be familiar, not only with the old law, and with the reasons on which it rested, but also, with the concurrent principles incidentally affected by the change, that he may know how to administer the new law so as to save to his client all the old rights while giving him the benefit of the new privilege. Suppose — to illustrate again — the accused party takes the stand and makes his statement, and then refuses to be cross-examined upon it ; has he a right to stop where he pleases, and to claim his constitutional right not to be coerced to give evidence against himself? If not, what remedy has the prosecution ? Shall the court strike out the evidence given, or punish the party as it might an ordinary witness, for refusing to testify further ? Upon such a question precedents might be of little Service, but one man rising to discuss it would be full of valuable thoughts and suggestions tending to lead the court to a correct conclusion, when another who, however much he might have read, had never troubled himself with thoughtful preparation for such questions, might flounder through a long speech, the only effect of which would be to make that darker which was dark enough before. The criminal lawyer needs to be specially familiar with the rules of evidence. In criminal cases, much more than in civil, it is important that he prevent improper evidence being put in against his client. The party defeated in a civil suit, through an erroneous ruling of the judge, has generally his full remedy when a new trial is awarded him ; but a new trial to one who has unjustly been subjected to the stigma of conviction of crime is far from being a complete vindication ; while to the prosecution after a wrongful acquittal, though brought about by a mistake in law on the part of the judge, there is generally no remedy. Fortunately there are good treatises on the rules of evidence, and their main and leading principles can easily be made familiar.(c) (6) Tills view has been put forth in one of the magazines by Mr. Francis Wharton. It is bolieved. however, that, where the new law has been tried, the result has generally proved satisfactory, and that many men, wrongfully or mislakctily accused, have been enabled under these statntes to give to the jury such explanations as removed all suspicions, when, had their mouths heen closed, their condemnation would hnve been inevitable. There are unquestiona- bly some difficulties in tlie case; but the rule of the common law, which permitted the accuser to be heard but not the defendant, resulted sometimes, beyond any question, in the conviction and punishment of the wrong party, because the party really guilty had been allowed, or been able, to make the first complaint. (c) There is, of course, much npon the subject of evidence in the treatises on criminal law, and Roscoe's Criminal Evidence is a useful work. Of the treatises on evidence, Greenleaf is. Digitized by Google 8UG0ESTI0NS FOR THE STUDY OF THE LAW. XXVU Equity law is a great stumbling block to many students, and there are not wanting those who have supposed it might be legislated out of existence. But although the division lines between law and equity have been broken down in some states, so far as concerns procedure, yet the codes which abolish distinctions of form do not do away with the principles, for the administration of which the old forms were designed ; and consequently works like Jeremy on Equity, Spence's Equitable Jurisdiction, Adams's Doctrine of Equity, and Stores Equity Jurisprudence, are as important and indispensable now, in all the states, as they ever were. Whether or not, therefore, he expects to practice m a state where the old forms are retained, the student must read equity, and if he finds it prove unattractive, there is all the greater reason why he should attack it with energy and perseverance. But if approached in that manner it will not prove unattractive. On the contrary, the student will soon find him- self reading, with admiration and pleasure, what at first appeared a confused collection of arbitrary rules, as he perceives how admirably equity supplements the law, and how peculiar is the adaptation of its remedies to the wrongs to be prevented, or the evils to be redressed. Nor are the works on common law pleading superseded by the new codes which have been introduced in so many of the states, {d) A careful study of those works is the very best preparation for the pleader, as well where a code is in force as where the old common law forms are still adhered to. Any expecta- tion which may have existed, that the code was to banish technicality and substitute such simplicity that any man of 6ommon undei-standiug was to be competent, without legal training, to present his case in due form of law, has not been realized. After a trial of the code system for many years, its friends must confess that there is something more than form in the old system of plead- ing, and that the lawyer who has learned to state his case in logical manner, after the rules laid down by Stephen and Gould, is better prepared to draw a pleading under the code which will stand the test on demurrer, than the man who, without that training, undertakes to tell his story to the court as he might tell it to a neighbor, but who, never having accustomed himself to a strict and logical presentation of the precise facts which constitute the legal cause of action or the legal defense, is in danger of stating so much or so little, or of presenting the facts so inaccurately, as to leave his rights in doubt on his own showing. Let the common-law rules be mastered, and the work under the code will prove easy and simple, and it will speedily be seen that no time has been lost or labor wasted in coming to the new pi'actice by the old road. A large and increasing proportion of those who come to the bar in America do so by way of the law schools. There is an advantage in that course in the fact that an esprU du corps is cultivated among those who gatlier there, which tends to a high code of professional ethics, and at the same time to a more careful study of the law as a science than is apt to be made in the law offices, perhaps, most used, the first volume being especially valuable. Starkie's is also an excellent work, and a new edition of the first volnme, which gives the general principles, has recently been issued in this country. Phillips's Evidence, including the notes by Cowen, Hill, and Ed- wards, is much more full in its references to cases than either of the others, though not so satisfactory for the student. (d) An excellent discussion of the science of pleading, not less practical than philosophical, will be found in the introduction to the new edition of Stephen on Pleading by Prof. Samuel Tyler. Digitized by Google XXYUl SUGOESTIONS FOB THE 8TUDV OF THE LAW. where each particular question is investigated with some reference to the com- pensation which should follow. The advice of Grid ley to John Adams was, " to pursue the study of the law rather than the gain of it : pursue the gain of it enough to keep out of the briers, but give your main attention to the study of it."(e) Fisher Ames said of Hamilton : "As a lawyer, his comprehen- sive genius reached the principles of his profession; he compassed its extent, he fathomed its profound, perhaps even more familiarly and easily than the ordinary, rules of its practice. With most men law is a trade; with him it was a science." (/) The same was true also of Pinkney and of Choate; the two greatest advocates perhaps that America has yet known. The industry of Choate was wonderful, but it was directed, not to the acquisition of money, but to the mastery of the law; and of Pinkney it was said that his speeches always " smelled of the lamp," but, nevertheless, they were a perpetual delight to those who heard them. The learned man cannot well be dull when speak- ing of the science he has mastered. All men, said Socrates, are eloquent in tliat which they understand. Another advantage derived from the law schools is, that students are enabled to form themselves into clubs for the discussion of moot cases. Such clubs, well managed, afford the best possible school for the cultivation of forensic eloquence. Some experience in extem- pore speaking every young man ought to have before coming to the bar, and if he begins his practice without the discipline it would give, he cannot be certain that timidity and embarrassment will not overcome him at the outset of his career. Few men are Erskines and Patrick Henrys, gifted with powers which make their first essay a triumph; the first efforts are, almost necessarily, mortifjdng failures, and unless they are made in these little societies, and th€ diflBculties mastered before the public become the audience, a man must have great native strength of purpose and power to endure scoflBng and ridicule, or shame and mortification may draw their veil around him, and shut off forever his ambitious hopes and bright visions of professional eminence. Now and then a Demosthenes or a Curmn will come, who will brave the ridicule and endure the mortification until repeated efforts have enabled him to conquer his natuml defects and natural timidity ; but every young man is not enabled to feel with the same confidence that they did, "it is in me, and it shall come out;" and one mortifying failure, not in the presence of a select company of friends, but before a public audience, a part of which is adversary in feeling, and includes rivals interested to make the most of the embarrassment, is sometimes sufficient to destroy the hopes of a life. Self-confidence the advo- cate must acquire ; and, in order that he may possess it, he must first have the necessary knowledge, and secondly, he must have tried his powers until he is certain of them. There is also an advantage in these societies, in that they enable their mem- bers to practice in the preparation of pleadings. The discussion of moot cases ought to be preceded by as careful Un issue as would be formed in an actual suit at law; and the benefit of this discipline is so great that it should never be («) Works of John Adams, II, 46. "His advice." says Mr. Adams, *• made so deep an impression on my mind, that I believe no lawyer in America ever did so much business as I did afterward, in the seventeen years that I passed in the practice at the bar for so little profit/' Pecuniary profit he means; for this study and practice were the foundation of his immortality (/) Works of Fisher Ames, vol. 2. page 260. Digitized by Google SUGGESTIONS FOR THE STUDY OF THE LAW. XXIX neglected. It accnstoms one to a critical and accurate use of language; and it giyes one an insight into the application of the rules of pleading not easily acquired except hy practice. The same care which one would expend in the preparation of the brief, ought to be employed on this preliminary proceeding; the purpose being the same in both cases — to give the mind a needful discipline. The briefs draw up for the argument ought to receive an equally conscientious attention. They ought to be logical and accurate, neat and lawyer-like. It is impossible to make a logical argument based upon a brief in which the points are stated with a slovenly want of precision, and the authorities arranged with- out logical order. Slovenly habits, whether pertaining to person, to study or to practice, are most dangerous in student life, because they tend to grow upon one until they obtain the mastery. In the argument of these cases, pre- cision of language, especially in the statement of legal definitions and princi- ples, is of far more importance than beautiful figures of speech, and is to be cultivated rather than a showy style. A legal point well-stated is half argued. These societies are useful, also, as inducing a taste for investigations in fields a little aside from technical law, and ^et having an important purpose in con- nection with its study. Political and international questions enlarge the mind and open the understanding of the lawyer, and fit him for the discussion of the great questions with which it will be his ambition afterward to become connected. What a field w^as opened before the student in the new questions of law and government growing out of the recent civil war 1 What questions in domestic politics, as well as in international law, still remain to be discussed, sifted, tested and settled ! We do not mean the questions of party politics, which are so often questions of low political strategy; for these, to the young lawyer, are a delusion and a snare, when he allows his mind to be possessed by them, and his taste to be perverted to a longing for party positions and honors. John Adams has well said that party is a tyrant. "At the bar * * is the scene of independence. Integrity and skill at the bar are better supporters of independence than any fortune, talents or eloquence elsewhere. A man of genius, talents, eloquence, integrity and judgment, at the bar, is the most independent man in society. Presidents, governors, senators, judges, have not 80 much honest liberty ; but it ought always to be regulated by prudence, and never abused." (g) High attainments are essential to this independence; and political positions are never of real honor, and always contemptible when, instead of being an award to eminent fitness, they are acquired by self-seeking, by becoming a party hack, and by imbibing and displaying all the party bigotry and party animosities of the day. This bigotry and these animosities are not generally strong in such societies ; and, with proper views of the true province and value of parties, they will be frowned upon and discouraged, and the feelings kept, under control, so that questions can be discussed upon their merits, instead of being viewed from the stand-point of prejudice. These societies, also, become associations of friends, who, if chosen with prudence, and with due regard to their acquirements, habits and tastes, are able to be of service to each other in many ways, besides the drill they give in the contact of mind with mind in these set discussions. Mr. Warren, in his Law Studies, (h) has emphasized the importance to a student of being prudent in the selec- (ff) "Works of John Adams, X, 21. eriod8 of the day. Ite powers at Ihe^e periods should therefore be attended to, in marshaling the business of the day." He therefore recommended that the student appropriate his time each day as follows : Till eight o'clock to the natural sciences, ethics, religion and natural law. From eight to twelve to technical hiw. From twelve to one to government, general politics, and political economy. In the afternoon to history. From dark to bed time to belle lettres, criticism, rhetoric and oratory. [Randairs Life of Jefferson, I, 58.] An admirable course in its general outlines, though the books he recommends are In great ^rt auperseded now by later publications. Digitized by Google XXX U SUGGESTIONS FOR THE STUDY OF THE LAW. ranks of our profession, a long and melancholy train of men once hopefn!, perhaps gifted; but the true lawyer is pure in life, courteous to his associates, faithful to his clients, just to all; and the student must keep this true ideal before him, observe temperance, be master of his actions, and seek in all things the approval of hi& own conscience, if he would attain the highest possiblo benefit from the study of the ljlw. The main purpose in giving to the public a new edition of the Commentaries of Blackstone, was to present the changes in the law which had taken place since the last preceding edition appeared, that the reader, while informing himself concerning the law of England of a century since, might not be mis- led in respect to its present condition. With this object before him, while avoiding the detail which might be useful to the English practitioner, but which would merely cumber the pages for American use, the editor has sought to indicate the statutory changes suflficiently to give a general id«^ of the advancement made in the English law since our commentator's time, and also to enable the American student to compare the law of his own country with the system from which it was derived, as modified by the experience of another land enjoying free institutions under circumstances and with a state of society considerably differing from our own. How far it was desirable to preserve the notes to the previous English editions, or to add thereto, was a question not easy of proper solution. The editor is fully aware that in some previous editions the proper province of an editor was exceeded, and that the additions made, instead of being suitable notes to the text, were in the nature of digests of the law upon very many of the questions which the text had discussed or alluded to. This was especially the case with the edition of that voluminous and industrious writer, Mr. Chitty, some of whose notes are a mine of information, almost making the work a library in itself, and which, nevertheless, were not more peculiarly appropriate to these Commentaries than they would have been to any other legal treatise which made general reference to the same subject-matter. Some of these notes, moreover, have wholly, or in part, become obsolete, and others related to branches of the law, or to questions, with which the lawyer in America has no occasion to deal. The editor was of opinion, however, that there was too much in Mr. Chitty^s annotations of substantial and permanent value to warrant their being entirely discaixled, and that while the student, or the gentleman who reads only for generjil or political information, may have little occasion to employ himself with them, the practicing lawyer, who shall make use of the work, will be gratified to find so much retained that is convenient and useful in his practice. But ^whatever has become obsolete, whatever, like most of the notes upon the law of tithes and of copyholds, is unimportant in America, luis been cut away with unsparing hand, that time and attention might not be uselessly occupied in exploring it The quantity of matter thus rejected was very large, and those who have occasion to make much use of the work will be thankful to get rid of it What is new in this edition has been added in the same spirit that has governed the selections from the English notes. As students make more use Digitized by Google SUGGESTIONS FOB THE STUDT OF THE LAW. XXXlll of the work than practicing lawyers, their information and benefit have been kept mainly in view^ bat references have beeii made to the judicial decisions on many practical questions^ and it is hoped they will be found not witlfout their convenience to the profession generally. The English notes which have been retained are inclosed in brackets to distinguish them from the new additions. The names of their authors are given in some cases where individual opinions are expressed^ but generally it has not been thought important to distinguish their sources, and in some cases where editors have combined with their own the labors of their predecessors^ it would have been difficult to do so. The analysis given of the contents is a considerable enlargement of that of Baron Field, and it is believed that^ if judiciously used, it will answer the - purpose for interrogating students better than the lists of questions sometimes given, which require the memory to be burdened equaUy with matter important and unimportant. The table of abbreviations embraces the legal authorities, and also other books which the reader might possibly desire to refer to, and which are not sufficiently described or indicated by the context THOMAS M. COOLEY. Akx Abbob, Sept^ 1870. A new edition of this work having become necessary, the editor has made some changes and addition^ but not such as will call for special notice here. They consist in the main of references to new cases, though some new notes have been added which may prove of practical value. T. M. COOLEY. Ank Abbob, Jan^ 1872. Vol. L— 0. Digitized by Google AUTHOE'S PREFACE. The following sheets contain the substance of a course of lectures on the Laws of England, which were read by the author in the university of Oxford. His original plan took its rise in the year 1763; and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually conceived against- any innovations in the established mode of education, he had the satisfaction to find, and he acknowledges it with a mixture of pride and gratitude, that his endeavours were encouraged and patronised by those, both in the university and out of it, whose good opinion and esteem he was principally desirous to obtain. The death of Mr. Viner in 1756, and his ample benefaction to the uni- versity for promoting the study of the law, produced about two years after- wards a regular and public establishment of what the author had privately undertaken. The knowledge of our laws and constitution was adopted as a liberal science by general academical authority; competent endowments were decreed for the support of a lecturer, and the pei-petual encouragement of students; and the compiler of the ensuing Commentai'ies had the honor to be elected the first Vinerian professor. In this situation he was led, both by duty and inclination, to investigate the elements of the law, and the grounds of our civil polity, ^yiih greater assiduity and attention than many have thought it necessary to do. And yet all, who of late years have attended the public administration of justice, must be sensible that a masterly acquaintance with the general spirit of laws and principles of universal jurisprudence, combined with an accurate knowledge of our own municipal constitutions, their original, reason, and history, hath given a beauty and energy to many modern judicial decisions, with which oui ancestors were wholly unacquainted. If, in the pursuit of these inquiries, the author hath been able to rectify any errors which either himself or othen may have heretofore imbibed, his pains will be sufficiently answered: and if in some points he is still mistaken, the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborioua Jfov 2 1765. POSTSCEIPT. N0TWITR8TANDINO the diffidence expressed in the foregoing Preface^ no sooner was the work completed, but many of its positions were vehemently attacked by zealots of all (even opposite) denominations, religions as well as civil; by some with a greater, by others with a less degree of acrimony. To such of these animadverters as have fallen within the author's notice (foi he doubts not but some have escaped it), he owes at least this obligation: that they have occasioned him from time to time to revise his work, in respect to the particulars objected to; to retract or expunge from it what appeared to be really erroneous; to amend or supply it when inaccurate or defective; to illustrate and explain it when obscure. But, where he thought the objections ill-founded, he hath left and shall leave the book to defend itself : being fully of opinion, that, if his principles be false and his doctrines unwarrantable, no apology fron himself can make them right; if founded in truth and rectitude, no censure trom others cap make them wrong. Digitized by Google CONTENTS OF THIS VOLUME. INTRODUCTION. OF THE STUDY, KATT7RB AND EXTEl^TT OF THE LAWS OF ENGLAND. Paob. SsoTiov I. On the study of the law, 3 II. Of the nature of laws in general,.. «, 3d III. Of the laws of England, 63 IV . Of the countries subject to the laws of England, . • 93 BOOK I. OF THE RIGHTS OF PERSONS. Chaptbb I. Of the Absolute rights of individuals, 121 II. Of the Parliament, 146 III. OftheKiugaud histitle, 190 IV. Of the King's Royal Family, 219 V. Of the Councils belonging to the King, 227 VI. Of the King's duties, 233 VII. Of the King's Prerogative, 237 Vlir. Of the King's Revenue, 281 IX. Of Subordinate Magistrates, •' • i . 338 X. or the People, whether Aliens, Denizens er Natives, 366 XI. OftheClergy, 376 XII. Of the Civil State, 396 XIII. Of the Military and Maritime S totes, ,... 408 XIV. Of Master and Servant, 422 XV. Of Husband and Wife, 433 XVI. Of Parent and Child, 446 XVII. Of Guardian and Ward, 460 X\III. Of Corporations, 467 BOOK 11. OF THE RIGHTS OF THINGS. I. Of Property in General, •' 1 II. Of Real Property ; and first, of Corporeal Hereditaments, 16 III. Of Incorporeal Hereditaments 20 IV. Of the Feudal System, 44 V. Of the Ancient English Tenures, 59 VI. Of the Modem English Tenures, 78 VII. Of Freehold Estates of Inheritance, 103 VIII. OfFreeholds not of Inheritance, 120 IX. Of Estates less than Freehold, 140 X. Of Estates upon Condition, 152 XI. Of Estates in Possession, Remainder and Reversion, 163 XII. Of Estates in Severalty, Joint-tenancy, Coparcenary and Common, 179 XIII. Of the Title to things Real, in general, 195 - XIV. Of Title by Descent, 200 XV. Of Title by Purchase, and first by Escheat, 241 XVI. Of TiUe by Occupancy, 258 Digitized by VjOOQ IC ^ XXX VI Contents op Tms Volume. Chaptu XVIT. XVIII. XIX. XX. xxr. XXII. XXIIL XXIV. XXV. XXVI. XXVII. XXVIII. XXIX. XXX. XXXI, XXXII. Of Title by Prescription .' • 263 OfTitle by Forfeiture, 267 Of Title by Alienation, 287 Of Alienation by Deed, 295 Of Alienation by Matter of Record,. • 344 Of Alienation by Special Custom, 365 Of Alienation by Devise, 373 OfThiBgB Personal, 384 OfProperty in Things Personal, 389 Of Title to Things Personal ; by Occupancy, ..••• 400 Of Title by Prerogative, and Forfeiture, 408 Of Title by Custom, 422 Of Title bj Succession, Marriage and Judgment, 430 OfTitle by Gift, Grant, and Contract, 440 Of Title by Bankruptcy, 471 Of Title by Testament and Administration,. • 489 APPENDIX. NuMBn I. Tetus Carta Feoiikmenti, • 521 11, A Modem Conveyance by Lease and Release, 521 III. An Obligation or Bond, with Condition for the Payment of Money, 527 IV. A Fine of Lands, sur Cognizance de Droit, Come ceo. &c.^ 527 y • A Common Recovery of Lands with double Voucher^ 529 Digitized by Google ANALYSIS OF THE CONTENTS OF THIS VOLUME. INTRODXJOTION. SECTION I. TnB Studt of thi Law, 3-37 introduction, .«...•. 3 importance of a study of the law, •• • 4 of the common law in particular, 5 to gentlemen of fortune, • • 7 to testators,. • • .' 7 to jurors, 8 to magistrates, 8 to members of the l^islature, 9 to the nobility, 11 to the clergy, 13 to medical practitioners, « • % . 14 to people of all ranks and degrees, It) attachment of the people to the common law, «....• .^ ..««.. 17 causes of the neglect of its study, , 17-23 the civil btw favored by the clergy, 19 fixing the court of common pleas in one place led to regular instruction in the law, 22 the inns of court and of chancery, • 23n the present curriculum joi legal instruction,. • 23n law schools in the United States,. «« • 24n Mr. Viner's endowment,. ....••. •••••., .••••.. 27 the law should be studied in the universities, 31 hints for the study of the law, ...31-37 SECTION 11. Thv Naturs of Laws ik Gbksral, • .38-61 law, a rule of action prescribed by a superior power, 38n ntUural law, the rule of human action prescribed by the Creator, and discoverable by the light of reason, 39 tJie divine or revealed law, also the law of nature imparted by God himself, 40 human laws depend on law of nature and revealed law, 42 <^ Icno of nations regulated the conduct and mutual relations of independent states with each other, • 43 fmmidpal or dvU law the rule of civil conduct prescribed by the supreme power of a state, commanding what id right and prohibiting what is wrong, 44 the rule prescribed should be for the future, 46n society is formed for the protection of individuals, 47 government is established for the preservation of society, 48 the three forms of government, democracy, aristocracy and monarchy, 49 in all governments there is an absolute supreme power to which the right of legislation belongs, 49 in these kingdoms this power vested in king, lords and commons, 49 the balance of powers in the constitution and the necessity of preserving it, 51 the English and American constitntions compared, 49n the American legislatures not sovereign, but exercising a trust, » 52n Digitized by Google xxxviii Analysis of the Contents of this Volume. The Natuhb of Laws in Qenbbal (contintted). »a« legislatiye power cannot be delegated, 52n constituent parts of a law, • 53 1. declaratory, which detines the rights to be observed and the wrongs to be ~ eschewed, 53 2. directoryy which commands that the right be observed and the wrong abstained from, 54 3. remedial, which points out the method of recovering rights and redress- ing wrongs, 54 4. vindicatory, which prescribes the penalty for public wrongs and breaches of duty, 54 natural rights and duties derive no additional strength from human laws, 54 nor things malum in se additional turpitude ^ 54 as to things malum prohibitum, the essence of right and wrong depends on the command of the law, .55 sanction of laws is vindicatory rather than remuneratory, 56 laws regarding natural duties and offences mala in se binding on the conscience, . 57 but not those regarding acts merely malum prohibitum, 57 this distinction doubted, 57n interpretation of laws §hould not be by law maker, 59 should inquire after intention of legislator, 59 1. his words to be understood in their usual meaning, 59 2. their meaning may be learned from the context, GO 3. they must be understood as having regard to tbo subject-matter,. .. • 60 4. the interpretation must be reasonable, 61 5. the reason and spirii of the law must be considered, 61 from this arises what we call equity, which is the correction of that wherein the law by i*eason of its universality is deficient 61 section III. Ov THE Laws of England, 61 92 laws of England divided into unwritten or common law, and written or statute law, % 63 the unwritten law had its origin in Anglo Saxon laws, 64 includes, 1. general customs, 2. particular customs, 3. particular laws, 67 what is embraced in American common law, 68n is determined by the courts of justice, 69 and the evidence preserved in their records, 69 precedents are to oe observed and followed, 69 but may be overruled when unreasonable, 69 are preserved m reports, 71 and digested by the sages in the law, 72 particular customs are those in use in particular districts, 74 1. these must have existed time out of mind, 76 2. and without interruption, 77 3. their enjoyment must have been peaceable and acquiesced in, 77 4. they must be reasonable, 77 5. they must be certain, 77 6. they must be compulsory, •.. • 78 7. customs miist be consistent with each other, 78 must be construed strictly when in derogation of the common law, 79 must submit to king's preroerative, 79 particular laws are such as by custom are used only in particular courts and jurisdictions, 79 these embface the Roman or civil law, • • 80 and the canon law, 82 the courts which receive these are the ecclesiastical, military, admiralty and university courts, 83 the written law includes statutes, acts or eF THB KiNa AND HiS TiTLS, 190-215 the supreme executive power is lodged in « single person, the king or queen, 190 the tUle to the crown is hereditary • 191 but descends in a course peculiar to itself, * 193 on failure of male issue, descends to issue female, 194 right of primogeniture, •••• 194 on f'aiiure of issue, goes to collaterals, • 194 is subject to limitation by parliament, « 195 but is hereditary in the new prince, •••••••.«...• 196 historical view of the successions, 197-210 King Egbert, King Canute, and William I, have successively consti- tuted the common stocks or ancestors of this descent,. 198 King James II declared to have abdicated the government, and va- cated the throne, 212 settlement of the crown upon William and Mary 214 the next Protestant heirs of the blood-royal of Charles I to succeed, .... 215 on failure of these heirs, crown settled upon Princess Sophia, of Han- ovm*, and her heirs, being Protestants, , • 216 CHAPTER IV. Of ths Kino's Rotal Familt, 219-232 1. the queen regent or sovereign, who holds the crown with the powers of king,. . 219 her husband is her subject, 224 2. the queen consort, who is a public person, and has separate courts and ofBicers, 219 her revenue and perquisites, • . . • .220-222 violation of her chastity treason, • 222 queen dowager, the widow of the king, 223 3. the Prinoe of Wales is heir apparent to the throne, 224 and his pri«)cess, are peculiarly regarded in the law, • 224 4. other members of the royal family, 225 precedence of the king's children and grandchildren, • 225 their care and education while minors, 225 their marriage requires the king's consent, 226 Digitized by Google xlii Analysis of the Contents of this Volume. CHAPTER V. ,^«^ Or THB Councils Belonging to thb King, 227-282 9 the king hath a diveisity of councils to advise with, 227 1. the high court of parliamenl already treated of, 227 2. the peers of the realm, who may be called on in parliament or out, 227 3. the judges of the courts of law in law matters, 229 4. the privy council, which is his principal council, 229 the cabinet in England and America, 229w, 232?t the duty and {)Owers of privy counsellors, 230-231 the judicial tribunal of the privy council, 231n the privileges of the privy counsellors, 232 the dissolution of the council, • 232 CHAPTER VI. ' Or THE Kino's Dtttibs, \ 233-235 the king's principal duty to govern his people according to law, 233 the coronation oaih embodies the terms of contract between king and people, .... 234 the king swears to govern by law, 235 to execute judgment in mercy, 235 to maintain the established religion, 235 CHAPTER VII. Of the King's Pbkrogative, , 237-278 the subject may freely discuss the limit of the prerogative, 237 the prerogative the special pre-eminence of the king over all others, 239 prerogatives are direct or incidental, which are exceptions to general rules, . . 240 direct regard, 1. the royal character; 2. royal authority ; 3. royal income, . . 240 the royal dignity embraces : 1. the attribute of sovereignty, the king's person being sacred,.. .. 241 remedy for private wrongs; petition to the khig in chancery,.. 243 remedy for public oppression ; impeachment of ministers, 244 2. the kmg's perfection ; he can do no wrong, but may be deceived or wrongly advised, 246 parliament may canvass the acts of the sovereign, 247 laches not imputable to the king, : 247 3. the king's perpetuity ; the person dies, the king survives, 249 m the exertion of lawful prerogative the king is absolute, 250 in this consists the executive power, 250 in foreign concerns the king represents •the people, 252 1. he sends and receives ambassadors, 253 their rights and privileges, 253-257 2. he makes treaties and alliances, 257 3. he declares war and makes peace, 257 4. may issue letters of marque and reprisal, 258 the conference of Paris concerning, 259n 5. may grant safe conducts, 259 in domestic concerns he has other prerogatives : 1. he is a constituent part of the legislature, and may negative laws, 261 ifl not bound by statutes unless named, 261 2. he is generalissimo in military and naval affairs, 262 may raise fleets and armies, and build furts, • 262-263 may appoint ports and havens, erect beacons, &c., 264 prohibit exportation of arms and ammunition, 265 restrain subjects from leaving the kingdom 265 8. be is the fountain of justice, erects courts and appoints judges, 266-267 is public prosecutor in criminal matters, and may pardon oflences,. . 268-269 issues pioclamations to enforce the laws, 270 but cannot dispense with their execution, 271 4. he is the fountain of honor, of office and privilege, • 271 has the sole power of conferring dignities and honors, 27 1 and of conferrina; privileges upon private persons, 272 5. he is the arbiter of domestic commerce, 273 not of foreign> which is regulated by law merchant, • • 273 Digitized by Google Analysis of the Contents of this Volume. xliii Of thx Kinq'8 Pskrogatiyji (continued), '^<»>- he establishes public markets and fairs, 274 regulates weights and measures, 274 and the coining and currency of money, 276 -279 6. he is the head of the Church, 279 as such convenes, controls and dissolves ecclesiastical bodies, 279 fills vacant bishopricks, 280 is dernier resort m ecclesiastical causes, 280 appeals now heard by judicial committee of privy council, 280 CHAPTER VIIT. Of thb King's Revenub, -...•. 281-337 his revenue is ordinary and extraordinary, • • . • 281 the ordinary is, 1. ecclesiastical ; 2. temporal, • 281 the ecclesiastical Ls derived from 1. the custody of the temporalties of bishops, •• 282 2. corodies or pensions out of bishopricks, • 284 3. tithes arising in extra parochial places, 284 4. first fruits and tenths ^f spiritual preferments, 284 the temporal is derived from 5. the rents and profits of crown lands, 286 6. the proHts of military tenures, 287 7. wine licenses, 289 8 . profits of t.he king's forests, 289 9. profits of the courts of iustice, 289 10. royal fish, which are whale and sturgeon,. 290 11 . shipwrecks and things ietsam, flotsam and ligan, 291-294 12. mines of silver and gold, 295 13. treasure trove, 295 14. waifs, 297 15 . estrays, 297 16. forfeitures for offences and deodands, 299 17. escheats, 302 which in America vest in the several states, 302n 18. custody of idiots and lunatics, 303 an idiot one without glimmering of reason, 304 a lunatic one who hath lost the use of reason, 304 the extraordinary revenue consists in aids, subsidies and supplies granted by the commons, 306 these are either annual or perpetual, 309 the annual are, 1. the land tax, which has superseded former modes of rating property, 309-314 2. the malt tax, 314 the perpetual are duties on imports and exports, 314 prisage or butleraee of wmes, • 315 tonnage and poundage duties, • . 316 2. excise duties • 319 3. duties on salt, 322 4. post-o£Bce duties, 322 this not now regarded a source of revenue, 323n 5. stamp duties, 323 6. house and window duties, 324 7. duties in respect to male servants, • 325 8. hackney coach and chair licenses, • 326 9. duties upon offices and pensions, 326 how the revenue is appropriated, , • . • . 326 to the payment of interest on the national debt, 326 amount of this debt, 327n the three principal funds, the aggregate, the general and South Sea funds pledged for the debts of the nation, • 329 the surpluses, after paying interest, constitute a sinking fund, 330 upon which the maintenance of the king's house and civil list are first charged, 331 expenses defrayed by civil list are all that relate to government, .... 332 the king's present prerogative compared to former times, 334-337 Digitized by Google xliv Analysis of the Contents of this Yolumb. CHAPTER IX. Of Subobdikatb Magistrates, 338--365 1 the sh^iff, who does the king's business in each county, 339 receives his appointment from the crown, o40n is judge and conservator of the peace, 343 executes judicial process, 344 is the king's bail i^ 344 appoints under-sherifis and bailiff), 345 is responsible for their misconduct, • . . • 345 jailors are his servants, 346 2. coroners, the lord chief justice being principal, 347 chosen by the freeholders of the county,. 347 hold inquests in case of sudden death, 348 ixiquire concerning shipwrecks and treasure trove, 348 ' serve process when sheriff interested, &c., 349 8. Justices of the peace, 349 are commissioned by ti>e king, 351 some are to be of the quorum, ; 351 their quaHiications, ! 252 the office, how determined, ■ 353 are conservators of the peace, 353 may hear and determine offenses, 354 their liability to an action, 354n 4. constables, are officers of hundreds and townships, 355 of two classes : 1. high ; 2. petty, 355 appointed to preserve the peace, keep watch, and ward and arrest offendei-s, . . 356 5. surveyors of highways, are officers appointed annually to keep highways in repair, and remove annoyances therefrom, 357 6. overseers of the poor, 359-365 how the poor formerly aided, 359 overseers now appohited annually, » . . ■ 360 their duties to assist the poor and And employment for those who can work,. 361 the law of settlements, 362 CHAPTER X. Of thb Peoplr, whether Aliens, Denizens or Natives, .....•• 366-376 natural bom subjects are those bom within the ligeance, 366 aliens are those born out of it, • 366 allegiance binds the subject to the king in return for protection, 366 in natives this is natural and perpetual, • 369 in aliens it is local, and contmues only while they are within the king's dominion, 370 the rights of natives also natural and perpetual, 371 of aliens local and temporary, 371 their rieht to purchase, hold and dispose of property is qualified,.. . • 371 children of English subjects bom abroad are natural born subjects, 373 also children of aliens bom within the realm, • 373 aliens may be denizens b^ letters patent, 374 may also be naturalized, 374 naturalized citizens have rights of native bom, except of holding offices, etc., 374 former disabilities of the Jews now removed, • 375 CHAPTER XI. Of thbClbrot 376-396 the whole people divided into clergy and laity, 376 th^ clergy comprehend all persons in holy orders and ecclesiastical offices, 376 are exempted from serving on juries or holding temporal offices, 377 and from arrests during divine service, 377 formerly had benefit of clergy w hen convicted of crime, 377 cannot be members of commons, engage in trade, &c., 377 the ecclesiastical orders are : 1. The archbishop or bishop, elected by the chapter of the cathedral church by virtue of license from the crown^ • • 377 Digitized by Google Analysis of the Contents of this Yolumb, xlv Of THfl CLXBar (continued), '^«* the srchbiflkep the chief of the clergy of the proTinoe, • • . • • 380 the bishop chief within his diocese, 382 their offices become void by death, deprivation, or resignation, 382 2. the dean and chapter, the council of the bishop, 382 3. the archdeacon subordinate to the bishop in the diocese, 383 4. the rural dean, now almost out of use, 383 6. the parson and Ticar ; the first having for the most part the whole right to the dues in the parish; the second having an appropriator over him, 384-388 to these, holy orders, presentation, institution and induction necessary,. 388 they cease to be such in various modes, 392 6. the curate, a temporary officiating minister, 393 7. church wardens, the guardians of the church and representatives of the body of the parish, 394 8. parish clerks and sextons, 395 woman may be aezton». . • • • • • • • • •395n CHAPTER XIT. . Ov m CiTiL Statb,/. 396-406 the laity divisible into three states, civil, military and maratime, 396 the civU, includes all the state except the clergy, the army and navy, ..••;••• 396 « consists of the nobiiity and commonalty, • 396 the nobility are, 1. dukes; 2. marquesses; 3. earls; 4. viscounts; 5. barons, 396-399 are created bv writ or patent,. 400 are tried by their peers, 401 cannot be arrested in civil cases, 402 they render verdicts and give evidence upon their honor, 402 cannot iose their nobility except by death or attainder, 402 the commonalty consist of the several orders of knights, esquires, gentle- men, yeomen, tradesmen, artificers and laborers, 403-407 table of precedence, 406a CHAPTER XIII. Ov THB MiLiTABT Ain> Mabitikb Statbs, • .408^21 the military state includes all such persons as are appointed for the safeguard and defense of the realm, 408 historical view of the military state, * 408-413 the militia of each county chosen by lot, 413 r^lar troops necessary for time of war, • • • • 413 origin of standing army, 414 it is kept on foot only from year to year, 415 and governed by military law, • • • • • • 417 relief of soldiers disabled, &c., 418 the maritime state consists of officers and mariners of the navy, 418 its present condition due to navigation acts, 419 may be supplied by impressment, 419 governed by its own rules, articles and orders, • • • • . 421 jbsabled or superannuated sailorscared for, • 421 CHAPTER XIV. Qy liABTBE Am) Sbbtakt, • 422-432 the private economical relations of persons are : 1. master and servant; 2. husband and wife ; 3. parent and child ; 4. guard- ian and ward, 422 master and servant considered : 1. as to the several sorts of servants,. . • • • 423 slavery, historical view of, 423-425 now abolished, • 425n menial servantSy or domestics, • 425 apprentices, who are bound by indentures to learn an occupation, 426 laborers, who are hired by day or week, 427 stewards, haUiffs and factors, who act rather in a ministerial capacity, but in law are servants,. ••.••••• •••••• 427 Digitized by Google xlvi Analysis of the Contents of this Volume. Of Mastsb AMD Sebtant (continued). '^* 2. reciprocal rights of servant and master, 427 third persons may be affected by this relation, 429 master may maintain his servant in his suits, •.. 429 may have an action for loss of service, 429n may justify assault in his defence, 429 the servant a corresponding right, 429 is responsible for acts of servants done by his command, 430 liable upon contracts made by servant within scope of his authority, 430n liable for injuries caused by negligence of servant,. 431 not for his intentional torts, 431n CHAPTER XV. Of Husbakd and Wipe, i 433-445 the relation of marriage includes the reciprocal rights and duties of husband and wife, 433 it is, in law, a civil contract, 433 to form it, the parties must 1. be willing to contract, 434 2. able to contract, % 434 3. must contract in fact, • 439 the disabilities are, I. canonical, which include precontract, relationship within prohibited degrees,- and some particular corporal infirmities, 434 II. legal, which include 1. a prior existing marriage, 436 2. want of age, which renders the marriage voidable, • 436 3. want of consent of parents or guardians, • 437 4. want of reason, 438 what is a su£Bcient contract of marriage, , 439 the relation may be dissolved by death or divorce, 440 divorce is of two kinds, one total, and the other partial, 440 when marriage declared null, the itssue are bastutls, 440 by marriage, the Te^al existence of the woman Is suspended, 442 husband and wife cannot covenant with each other, 442 wife may be attorney for husband, 442 husband may bequeath to wife, 442 must provide wife with necessaries, 443 must pay her previous debts, 443 must be joined in her suits, 443 husband and wife cannot generally be witnesses for or against each other, .... 443 as to her separate estate, the wife has a power of control, 444n wife presumed to act under compulsion of husband, 444 general view of tlie wife's disabilities, • 445n CHAPTER XVI. OfPabbkt AND Child, 446-459 iak akd Wabd, 460-4GG this relation bears near resemblance to that of parent and child, 460 1. guardian by nature is the father, and sometimes the mother, 461 2. guardians for nurture, who are the parents, or, if there are none, some per- son appointed by the ordinary, . • 461 3. guardians in socage, when the mhior is entitled to lands, 461 4. guardians by statute, or testamentary guardians, 462 lord chancellor the supreme guardian, 463 -guardian not permitted to profit from ward's estate, 463» his accounts supervised by court, 463n K person is of age at twenty-one ^ • • . . 463 may do various acts under that age, • • . 463 an infant sues by next friend, and defends by guardian, 464 his criminal capacity, 464 may contract for necessaries, # ' «• 465 his contracts generally voidable, 466n chapter xvin. Of Coepokations, 467-485 corporations are bodies politic and corporate, 467 have the advantages of perpetual succession, • 467 origin of, attributed to the Romans, 469 first division of, 469 1. aggregate^ consist of many persons, 469 2. sole, consist of one person and his successors, 469 king and bishops instances of, 470 second division of, 470 1. ecclesiastical, composed of spiritual persons, 470 do not exist in the United States, 470n 2. lay, again divided into civil and eleemosynary, 470 civil, exist for a variety of temporal purposes, • 47 1 eleemosynary are for distribution of bounty, 470 I. how corporations created, 472 were voluntary associations under civil law, 472 in England the king's consent necessary, 472 consent implied where they exist by the common law, 472 may be corporations by prescription, • . . 473 charters may be granted by parliament, ^ 473-474 the king's patent of incorporation, • 473 the king may grant to subjects the power of erecting corporations, 474 there must be a corporate name, 475 and may be several, 475n II. the capacities and incapacities of corporations, 475 1. the capacity to have perpetual succession, 475 to that end corporations aggregate elect members, 4 « 5 2. to sue and be sued, grant and receive, &c., by the corporate name, 475 3. to purchase and hold lands, t : • * ' ' ; fI5 4. to have a common seal by which their acts and contracts evidenced,. , 475 may do many acts without seal, 475n acts ultra vires void, • • 475n some corporations may give notes and bills, 4i on corporations liable generally for wrongful acts and neglects of officers ^ and agents, • j^6n sometimes for fraud of agents, 475n 6. to make by-laws, j^^ but they must not be contrary to law, 476 corporations aggregate must appear by attorney, 476 cannot commit battery, treason or other crime, 4/6 cannot perform personal duties, • • 477 cannot hold lands in trust genei-ally, 477 Digitized by Google xlviii Analysis op the Contents of this Volueb. Of Gobpobattoks (continued). rA«n may take goods and chattels for themseWes and their saooessors, • • • • 477 act of major part is act of whole, 478 may purchase lands for themselves and their successors, 478 the statutes of mortmain restrain this power, 479 duty of corporation to act up to end and design of their creation, . • • 480 III. corporations, how visited, ^ • 480 in the case of ecclesiastical corporations, 480 of lay corporations, the founder or his heirs or assigns are visitors^ 480 supervision is exercised through the king's bench, • • . • . 481 powers of visitor, f ..•••• • 483 legislature the visitor in United States, 482n lY. how corporations may be dissolved, 484 particular members may be disfranchised or resign, • , 484 if improperly removed mandamus lies, • . . • • 484n dissolution is civil death, • 484 its lands then revert to the grantor or his heirs •.. 484 its debts extinguished, 484 modes of dissolution, • 485 1. by act of parliament, 485 2. by natural death of all the members, 485 3. by surrender of franchises, • 485 ^ by forfeiture of charter, 385 tacit condition of grant of charter that the purpose shall be observed,. • • 485 forfeiture must be judicially declared, 485 the writ of quo warranto, to inquire into usurpations of corporate franchises, 485 BOOK n. OP THE EIGHTS OP THINGS. CHAPTER I. Or Pbopbbtt m Gbnbbal, 1-14 all dominion over external objects is the gift of the Creator, 2 the substance of things at first common to all, 3 each appropriated what his necessities required, 3 temporary rights in permanent things acquired by occupancy, 3 afterwards not the use only but the substance of things appropriated,* . • . • • • 4 the fight referred to occupancy, ••• 5-9 colonization based on the same right,. • 7 the right lost by abandonment,. ..*.. • 9 aodeties established conveyances, wills and heirships, to continue the proprietorship, 9-13 the sovereini succeeds to inheritances to which no other title can oe formed,. 11 some things still remain in common ; such as light, air and water, M&d aaimi^ ferce ncOura, 14 in these individuals have only a usufriiotory property, ••.•• 14 other things, as waste lands, wrecks, estrays ana game, the law, to prevent dis- sensions vests in the sovereign, •••• 15 CHAPTER II. Or Rbal Pbopbbtt : akd fiest, of Corporeal HERKDiTAmBim, •«•••• 16-19 things real consist of lands, tenements and hereditaments, • 16 land comprehends all things of a permanent substantial nature, 16 tenement signifies ever v thing that may be holden of another, and includes land, 16 hereditament includes both the others and whatever may be inherited, whether corporeal or incorporeal, • 17 corporeal hereditaments are such as effect the senses and may be seen and handled, 17 they include land, which in a legal sense includes the structures upon it, and the water standing on or flowing over it,. ••• •• 18 and has an indefinite extension up and down, • • 18 CHAPTER in. Or Inoorpobbal Hbrbditambnts, 2(M4 an incorporeal hereditament is a right issuing out of a thing corporate, or oop<)em- iog or annexed to or exercisable withm the same, 20 Digitized by Googl( Analysis of the Contents of this Yoluice. xlix Of Ikoobpokxai. Hbebbitajibnts (conHn^ed), »a«^ these are, 1. fdvowsons; 2. tithes; 3. commons ; 4. ways; 5. offices ; 6. digni- ties; 7. franchises; 8. oorodies or pensions; 9. annuities; 10. rents 21 I. advotcson is the right of presentation to a church or ecclesiastical benefice,. 21 it is either appendant to an estate, or in gross, when it is annexed to the person of the owner, 22 it may also be, 1. preventative ; 2. coUative ; 3. donative, 22 II. tithes are a tenth part of the yearly increase from lands, stock and industry, appropriated to the parson or Ticar, 24 historical view thereof, 25 may be discharged, 1. by composition ; 2. by custom or prescription,. . • 28, 29 are now converted into a rent charge, 32h in. common is a profit which a man hath in the land of another 32 1. common of pasture, which is either appendant, appurtenant, because of vicinage or in gross, 32 2. common of fishery, or a liberty oT fishing in anoUier man's water, 33 3. common of turbary, or a liberty of di«rging turf upon another's ground, 34 4. common of estovers or botes, or the right to take necessary wood from another's estate to furnish or supply a house or farm, 35 lY. tcaps are a right of goin^ over another man's ground, 35 distinguished from highways, 35fi how highways established, 35«* are either in gross or appurtenant to an estate, • • . • 35n they originate in grant, 35 but may be claimed by prescription, 35 or exist from necessity, 36 T. offices are the right to exercise a public or private employment, • 36 YI. dignities are nearly related to offices, and have be<:n already treated of,. . . . 37 X II. franchises are royal privileges, or branches of the king's prerogative subsist- ing in the hands of a subject, * 37 Yin. corodies are allotments for one's sustenance, sometimes converted into pen- sions, 40 IX. annuities are yearly sums chargeable upon the person of the grantor, 40 X. rents are a certain profit, i.ssuing periodically,, out of corporeal liereditamtnts, 41 1. rent-service, so called because service, or at least fealty, is incident to it, 41 2. rent-charge, where the owner hath no future interest or expectant ret mainder in the land , but is given a right to distrain, 42 3. rent seek, or rent reserved without right of distress, 42 rent is regularly due and payable on the land, 42 CHAPTER lY. Of th» Feudal Ststbk, 44-58 the doctrine of tenures derived from the feudal system, 44 the constitution of feuds had its origin from the military policy of the northern conquerers of Europe, 45 historical view thereof, 45-5? the fundamental maxim of the feudal system, that all lands were granted out by the sovereign, and are holden of him, 53 fealty and homage due from the tenant, 53 feuds originally at will, at length became hereditary, 54-57 but could only be transferred by mutual consent, 57 improper feuds were derived from the others, but differed in original, services, rend- ers, &c., • • 58 CHAPTER Y. Or THB Akgtbxt English Tenures, .....•• . .59-77 almost all real property is holden of a superior, 59 the distinction of tenures consisted in the nature of their services, 60 tenures in chivalry, or knight-service, most universal, and regarded the most honorable, 62 incident to it were aids, reliefs, primer seisin, wardship, marriage, fines for alienation and escheat, 63-73 grand sergeanty differed from chivalry in the service to be performed,.. . 73 the personal services gradually changed into pecuniary assessments,. • . • 74 these called scutage or escuage, 74 Vol. L~D. Digitized by Google 1 Analysis of the Contents of this Volume. Or THfl Ahoibnt English Tbxubis (continued). the military tenures, ezoept grand sei^geanty, abolished at restontion of Charles II, 77 CHAPTER VI. Or THB MODBBN ENGLISH TbNUBBS, 78-101 socage is tenure by any certain and determinate service, 79 It is free socage where the services are honorable, and villein-socage when thej are of baser nature, 79 socage tenure a relic of Saxon liberty, . . . / 81 includes petit sergeanty, burgage tenure, and gavelkind, 81 partakes, like tenure in chivalry, of the feudal nature, 85 1. both are held of a superior, 86 2. both are subject to a return or service, 86 3. and to fealty, 86 4. and to aids for knighting the lord's son and marrying his daughter,. . . 86 5. and to reliefs, 87 6. primer seisin was incident to the king's tenants in capite, 86 other incidents were, 7. wardship; 8. marriage; 9. 6nes, 10. escheat,... 87 Tillemage tenure was either pure or privileged, 90 pure villeinage was a precarious and slavish tenure at will, upon uncertain and base services, 90 from thence have nprung copyhold tenures 90 to understand which a view of the origin and nature of manors is necessary, 90 villeins were villeins regardant, or annexed to the manor, or in gross, or pertaining to the person, 93 enfranchisement of villeins, • 94 copyhold tenures rest upon custom, 95 are sometimes inheriiable and sometimes not 97 are subject to service of some sort, relief and escheats, 97 also to heriots, wardship, and fines, 97 pnvileged villeinage is an exalted species of copyhold tenure, held by certain services, and existing only in the. ancient demesnes of the crown, and thence called ancient demesne, , 98 the tenants have some peculiar immunities, and hold by the custom of the manor, and not at will, 99 frankalmoign is tenure by a religious corporation for a render of religious ser- vices, 101 many ecclesiastical and eleemosynary corporal ions now hold lands thereby 101 the services were not certainly defined, in which it differed from tenure by divine service, 102 CHAPTER VII. Or Fbbbhold Estatbs of Inheritangb 103-119 an estate inlands, tenements or hereditaments signifies such interest as the tenant hath therein 103 to ascertain which must be considered, 1. the quantity of interest; 2. the time of enjoyment ; 3. the number and conneetions of the tenants, 103 with respect to quantity of interest estates are freehold or less than freehold,. 103 a freehold is such an estate as is conveyed by livery of seism, or in incorporeal tenements, by what is equivalent thereto, 104 freeholds are 1. of inheritance ; 2 not of inheritance, or for life only, 104 freeholds of inheritance are absolute, or fee-simple, and limited, 104 1. tenant m fee-simple is he that hath real property to hold to him and his heirs forever, generally, absolutely and simply, 104 this is property in its highest degree, 105 the fee simple generally resides in some person, though inferior es- tates are carved out of it, • 107 in a grant or donation, the word *' heirs " is generally necessary to create a fee, 107 exceptions to this rule, ' 108, I09n 2. a base or qualified fee is one that hath a qualification attached by which it may be determined, 109 Digitized by Google Analysis of the Contents of this Volume. li 0» FiiBKHOLD Estates of Inherit anck (^continued). '^«»' 3. a conditional fee at the common law was a fee restrained to the heirs of the donee's body exclusive of others, 110 this was held a fee on cdndition the donee had iieirs of his body,.. . • 110 the estate was therefore absolute when issue was born, and the donee might then alien the land, » . . Ill the statute de donis wax passed to prerent such result and required the lands to go to the issue, if any, and if none, to revert, 112 a conditional fee then called fee tail, 112 all tenements real or savoring of the realty may be entailed, 113 estates tail are general, where the lands are given to one and the heirs of his body generally, 113 or special, where the gift is restrained to certain heirs of the body, and not to all of them, 113 words necessary to create a fee tail,. 114 frank marriage a species of estate tail, 115 incidents to estates tail, 115 1. the right to commit waste, 115 2. dower ; 3. curtesv, 115 4. the right to bar tne entail, . • • • 115 historical view of estates tail, 115-119 ' the tenant may now alien in fee simple by an ordinary deed, 119n CHAPTER VIII. Ov Fbbeholds kot of Ikhxrttancb, .....: 120-139 freeholds not of inheritance are either 1. conventional, or created by act of the par- ties, or 2. legal, or created by operation of law, 120 1. conventional estates for life, are for the grantee's own life, or for the life of another, or for more lives than one, 120 and may also be created by a general grant defining no term, 121 incident to these are estovers, 122 also emblements where the estate is not determined by the tenant's own act,. 123 to which sub-tenants are also entitled, 124 2. of the legal kind is, 1. tenancy in tail after possibility of issue extinct, 124 which is of a somewhat amphibious nature, 125 2. tenancy by the curtesy of England, which is where a man's wife is seized of an estate of inheritance, and after issue born alive of the marriage which might inherit the estate ; if she dies he shall hold for his hfe, 126 3. tenancy in dower, is where the husband, being seized of an estate of inher- itance in lands, dies, the wife surviving 129 in which case she shall have the one-third part for her life, 129 but she must be his wife at the time of his decease, 130 and the marriage must not have been void, 130 the seisin may have been for an instant only, 131 dower is either by the common law, by special custom, ad ostium ecclesuB or ex izssensu patriSy 132 the estate is not complete until assignment is made of dower, 134 it may be barred by elopement with adulterer, divorce, alienage, detaining title deeds, or fine and recovery, 136 also by an estate in jointure settled on her for the purpose, .137 CHAPTER IX. Of Estates less than Freehold, 140-151 estates less than freehold are, 1. for years ; 2. at will ; 3. at sufferance, 140 estate for years is where lands arc let for any certain period of time, 140 the computation of time, year, month, week and day, 140 livery is not given, and it may be made to commence in future, 143 incident to it are estovers, 144 also emblements, if it determines before the end of the term, 145 estate at will is where lands are let to hold at the will of the lessor, 145 which is also at the will of the lessee, 145 incident to which are emblements where the estate is not determined by the tenant, « 146 rights of the parties when the estate is determined,. 146 Digitized by VjOOQ IC lii Analysis of the Contents op this Volume. Of Estates lbss than Freehold (continued). '«« eopyhold estates are held at the will of the lord, regalated according to the custom of the manor, 147-150 estate at sufferance is where one lawfully comes into possession of lands and wrongfully holds over, • 150 CHAPTER X. Of Estates upon Condition, 152-162 estates upon condition are created, enlarged or defeated by the happening or not happening of some uncertain event, 152 these are those, 1. on condition implied ; 2. on condition expressed, 152 under which last head may be included, 3. estates held in pledge ; 4. estates by statute staple or statute merchant ; 5. estates by elegit, 152 estates upon .condition implied are those which, from their nature and consti- tution, have a condition inseparably annexed, 1 53 estates upon condition expressed are where an express qualification is annexed to the grant, whereby the estate is to commence, be enlarged or defeated, 154 the conditions are precedent or subsequent, 154 a limitation differs from a condition in that it absolutely determines the estate,, while upon breach of condition the grantor, or his heirs, has a right to determine it, • • 155 impossible conditions, and those contrary to law, or repugnant to the estate, are void, 156 estates in pledge are, 1. where the profits of land are granted till a debt is paid, called vivum vadium, 15* 2. mortuum vadium, or mortgage, where an estate is gi-anted on condition to be void on payment of the debt, 158 the two parts of a mortgage, the conveyance and defeasance, may be in the same or in two instruments, 158 to which may be added a power of sale, 159n the mortgagee may take possession, subject to be dispossessed on performance of condition, 158 if the mortgagor fails to1)erform by the day he has neverthuless an equity of redemption, • • 158 this equity may be foreclosed in several ways, • 159 the vendor of lands may have an equitable mortgage, without writing, for unpaid purchase- money, when he has not waived it, 159n the doctrine of tacking mortgages 160n estates by statute staple or statute merchant are conveyed under certain statutes, and resemble the vivum vadium, 160 estate by elegit is where lands are delivered to the plaintiff under a judicial writ until their profits shall satisfy his judgment, 160 , CHAPTER XI. Of Estates in Possession, Remaindeb and Reybasion, 163-178 estates are either in possession or expectancy, and the latter are either remainders or reversions, • 163 1. an estate in possession is where the present interest passes to and resides in the tenant, • 163 2. a remainder is an estate limited to take effect and be enjoyed after another par- ticular estate is determined 164 to this there must be, 1. a particular estate to support the remainder, 165 2. the remainder must pass out of the grantor at the creation of the par- ticular estate, 167 3. the remainder must vest in the grantee during the continuance or at the deteimination of the particular estate, 168 remainders are, 1. vested, where the estate is fixed to remain to a certain person after the particular estate is spent, 168 2. contingent, where the estate is limited to take effect either to an uncer- tain person or on an uncertain event, 169 a contingent nemainder of freehold can only be limited on a freehold, .... 171 they are defeated by destruction of the particular estate, 171 Digitized by Google Analysis of the Coj^TfiNTS of this Volume. liii Of Esxatbs in Possession, Remainder and Reversion (cantinued}. »a<» an executory devise is such a disposition of lands by will that no estate vests at death of devisor, but only on a future contingency, 172 this requires no particular estate, a fee simple may be limited after a fee Kimple, and a remainder of a chattel interest after a life estate, 173 how long the power of alienation may be suspended, •••....••••... 174 a reversion is the residue of the estate lefl in the grantor to commence in possession after the determination of a particular estate granted,.. 175 incident to it are usually fealty and rent, 176 when a greater and a lesser estate meet in the same person, the less is merged, 177 but they must meet in the same right, and without intermediate estate, 177 CHAPTER XII. Of Estates in Severalty, Joint Tenancy, Coparcenary, and Comkon, 179-194 an estate in severalty is where one holds in his own right and is sole tenant, 179 an estate in joint tenancy is an estate granted to two or more persons, with several requisites. 180 1. it is created by act of the parties and not of the law, 180 2. its properties are unity of interest, title, time and possession,. • 180 the right of all must come by the same act or conveyance, • . 181 each tenant is seized per my et-per tout, .\ • . • . 181 the peculiar estate granted to husband and wife jointly, 182 on death of one joint tenant, the entire estate remains to the survivors, 183 this estate is destroyed by destroying any of its constituent unities, usually done by partition, 185 an estate in coparcenary, is where an estate deseends to two or more persons,. . . . 187 in which case each is seized of a distinct moiety on{y, 188 the parceners may have partition, 189 incident to this estate is the law of hotchpot, • 190 in the United States estates so descending are estates in common, 192n tenancy in common is where there is unity of possession merely, but perhaps an entire disunion of interest, title and time,. • 191 this may be created by deed, or by destruction of another joint estate without partition, 192 the tenants take by moieties only, and there is no survivorship, 194 they may sever their interests by partition, 194 CHAPTER XIII. Ot the Title to Things Real in General, 19&-199 a title is the means whereby the owner of lands hath just possession of his property, • 195 1. the lowest title is mere naked possession without right, 195 2. the next step is the right of possession, which one may have though disseized,.. 19G 3. the mere right of property may be without possession or right of possession, . .. 197 as where one disseized has neglected to pursue his remedy till it is haired,. . . . 198 4. a complete title combines possession with right of property, •••• 199 CHAPTER XIV. Of Title BY Descent, 200-240 descent is the title whereby a man on the death of his ancestor acquires his estate as heir at law, 201 this depends on consanguinity, which in either lineal or collateral, 202 the degrees are computed accoiding to the canon law, by which two persons are related in whatsoever degree the most remote is distant from the com- mon ancestor, •••.. • ••••• 206 the computation of the civil law is different, •• • 207n the eanons of descent are : 1. inheritances shall descend to the issue of the person who last died seized, in infinitum^ but never lineally ascend, • 208 this now altered, 208n 2. the male issue shall be admitted before the female, .•• 212 Digitized by VjOOQ IC liv Analysis of the Contents of this Volume. Of Titlb by Descent (^continued). »*« 3. of two or more males in equal degree, the eldest only shall inherit, but the females altogether, 214 4. lineal descendants in infinitum of a person deceased shall represent their ancestor, 216 5. on failure of descendants of the person last seized, the estate shall descend to his collateral relatives of the blood of the first purchaser, 220 6. the collateral heir must be the next collateral kinsman of the whole blood, 224 this now modifieTER XXI. Or Alibnation bt Matter of Recohd, 344-364 assurances by matter of record are where the sanction of a court of record is called in to substantiate and witness the transfer, 344 1. the first class are private acts of parliament, which are obtained when the nature of the title is such that reasonable relief is not otherwise to be had, 344 2. the king's grants by letters patent, 346 3. fines : a tine was an amicable composition or agreement of a suit, actual or fictitious, whereby the lands in question were acknowledged to be the right of one of the parties, 348 parties, privies and strangers were bound by a fine ; the latter unless they interposed their claim in due time, 355 4. common recoveries, invented to etude the statutes of mortmain, 357 which were suits or actions actual or fictitious, in which a fictitious re- covery of the land was had, 357 the effect was, to bar estates tail, remainders and reversions, 361 fines and common recoveries are now abolished, 348n, 357n in addition to the conveyances mentioned, there were also deeds to lead or declare the uses of fines and recoveries, 363 CHAPTER XXII. Of Alienation bt Special Custom, 365-372 assurances by special custom are confined to copyhold estates, • 365 this was effected by 1. surrender by the tenant into the hands of the lord to the use of an- other, according to the custom of the manor, 365 2. presentment by the tenants, or homage, of such surrender, 366 3. admittance of the surrenderee by the lord, 366 admittance may also be had upon original grants to the tenant from the lord, and upon descents to the heir from the ancestor, • 370-371 Digitized by Google Iviii Analysis of the Contents of this Volume. CHAPTER XXIII. ,^.^ Of Aliknations by Deyisb, . • . .373-383 deyise is a disposition of real property in a man's last will and testament, 373 this was not permitted by the common law as it stood since the conquest, but was introduced by statute under Henry VIII, 375 corporations, excepted in these statutes, may take to charitable uses, .... 375 the statute of frauds, 29 Car. II, o. 3, requires wills to be signed and at- tested, *. , 376 an instrument similarly executed may revoke a will, 376 it may also be revoked by bumine, cancelling, tearing or obliterating,. . . . 376 and impliedly by marriage and birth of a child, 376 what is a sufficient signing, 377 witnesses must attest in the testator's presence, 377 how interest affects their competency, 377 wills are subject to the rights of creditors, 378 as to personal estate they speak from the death, but as to real from the time of execution, 378 cercam rules of construction apply to all conveyances, 379 1. that the construction be favorable, and as near the intent of the parties as the law will admit, 379 2. that the intent is to be regarded rather than the words 379 3. that the construction is to be made upon the entire deed, and not merely upon disjointed parts of it, 379 4. that it shall be taken most strongly against him who is agent or con- tractor, and in favor of the other party, 380 5. that if the words will bear two senses, one agreeable to and one against law, the first shall be preferred, 380 6. that in a deed, if two clauses are totally repugnant, the first shall be re- ceived and the last rejected, 381 but that in a will the last of two repugnant clauses shall stand, 381 7. that a devise be most favorably expounded ; the law sometimes dispensing with the want of words here which are absolutely requisite in other in- struments, 381 CHAPTER XXIV. Of Things Personal, 384-388 things personal include all sorts of things movable which may. attend a man's person, 384 also certain interest in lands, under the general designation of chattels,. • . • . • 385 chattels are, 1. chattels real ; 2. chattels personal, 386 1. chattels real include such interests in the realty as are less than free- hold 386 2. chattels personal are properly things movable, ••• 387 CHAPTER XXV. Of Property in Things Personal, 389-399 property in chattels personal may be either in possession or in action, 389 I. a man hath property in possession absolute when he hath solely and exclu- sively both right and possession, 389 II. of animals fercR natura, a man may have a qualified property, 391 1. this may be per industrianiy by hi.s reclaiming and taming them, 391 2. or raiione impotentia, as in the case of young birds or coneys in their nests or burrows on one's land, 394 3. or propter privileffiumy as in the case of animals usually called game,.. 395 a qualified property also exists in air, light and water, while in actual use and occupation, 39^5 also in property bailed, in which neither party has the absolute property,. . . . 395 also in goo